Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-27T06:46:07.533Z Has data issue: false hasContentIssue false
  • English
  • Français

The Varieties of Legal Positivism: Critical Notice: Inclusive Legal Positivism by W.J. Waluchow*

Published online by Cambridge University Press:  09 June 2015

Stephen R. Perry
Get access

Extract

It is not easy to come up with a characterization of legal positivism that is not vacuous and yet at the same time is sufficiently general to capture the myriad theories of law to which, over the years, the positivist label has been attached. Wil Waluchow suggests in his recent book Inclusive Legal Positivism that the core of positivism is the simple claim that any connections between law and morality are contingent only, dependent on whether the right kinds of laws have been created in the right kinds of ways (81). As a thumb-nail sketch of positivism this suggestion is plausible enough, so far as it goes, but it is important to note that it focuses on the possible connection between moral value and law, as opposed to that between moral value and theories of law. For there is an important strand in positivist thought that is as concerned with denying the latter type of connection as it is with denying the former. We can, in other words, distinguish between what we might call methodological and substantive versions of positivism.

Type
Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 2 , July 1996 , pp. 361 - 381
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See particularly Moore, Michael S. , “Law as a Functional Kind” in George, Robert P., ed.. ed.. Natural Law Theory: Contemporary Essay.1: (Oxford: Clarendon Press, 1992).Google Scholar

2. Postema, Gerald, Bentham and the Common Law Tradition (Oxford: Clarendon Press. 1986) at 328–36.Google Scholar

3. Raz’s most recent contributions to jurisprudence have been collected in Raz, Joseph, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) chs. 8–16.Google Scholar Raz at points appears to accept methodological positivism—see, e.g., ibid, at 192–93,219–21—but it can be argued that his argument for the sources thesis, based as it is on a moral conception of legitimate authority, commits him to a more thorough-going normative methodology. See, e.g, —Perry, Stephen, “Interpretation and Methodology in Legal Theory“; in Andrei Marmor, ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 97, at 125–28.Google Scholar1 touch briefly on these issues in section 111 below.

4. Hart, H.L.A., The Concept of Law, 2nd ed., (Oxford: Clarendon Press, 1994) at v.Google Scholar

5. Coleman, Jules, “Negative and Positive Positivism” (1982) 11 J. of Legal Stud. 139.Google Scholar

6. Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 45–113.Google Scholar

7. The notion of legal-adjudicative powers and duties is very close to Raz‘s notion, not discussed by Waluchow, of a judicial directed power. See Raz, Joseph, “The Inner Logic of the Law in Eckhoff, Torstein, Friedman, Lawrence M., & Uusitalo, Jyrki, eds., Vernunft unci Erfahrung im Rechtsdenken der Cegenwart, Rechtstheorie supplementary vol. x (Berlin: Duncker and Humblot, 1986); reprinted in Raz, supra note 3 at 222. (Subsequent references are to this reprint.)Google Scholar

8. For example, the connection between Hart‘s theory of law and his theory of adjudication is, according to Waluchow, more complex than is usually realized. Hart does not insist that all law determined to be valid by the rule of recognition must be applied in all cases covered by the laws‘ core of settled meaning, since he does not deny that, in an appropriate case, the court may exercise its legal-adjudicative power to change the law (65–66). Waluchow goes on (at 75–76) to make the interesting observation that Hart seems implicitly to allow in The Concept of Law for the existence of legal-adjudicative powers and duties when he introduces the idea of secondary rules of adjudication (an idea, however, that he admittedly did not develop).

9. Raz, Joseph. The Authority of Law (Oxford: Clarendon Press, 1979) at 50.Google Scholar

10. Ibid, at 52.

11. Dworkin, Ronald, Taking Rights Seriously, 2nd ed., (London: Duckworth, 1978) at 347–48.Google ScholarPubMed

12. See Joseph Raz, “Authority, Law, and Morality” in Raz, supra note 3 at 194.

13. Raz, “The Inner Logic of the Law” supra note 7 at 231 -32

14. Supra note 1 I at 347.

15. 1 have discussed the methodological issues considered in this section at greater length in Perry. supra note 3.

16. Supra note 1.

17. “[Positivism] should be identified primarily as a thesis concerning the conceptual separation of law and morality …” (229–30).

18. Supra note 4 at 40, 91–93.

19. Cf. Postema, supra note 2 at 335.

20. Supra note 9 at 153–59.

21. Supra note 6 at 422.

22. See further Perry, supra note 3 at 121-34.

23. Raz adopts this point of view because law is a concept of our culture that people use to understand themselves and it is “a major task of legal theory to advance our understanding of society by helping us to understand how people understand themselves.” Raz, supra note 3 at 221. This is very much in line with the approach for which 1 argue in the text regarding the role of conceptual analysis in legal theory.

24. Supra note 11 at 346–49, 338.

25. Supra note 6 at 400-01.

26. Waluchow cites P.H. Nowell-Smith, “Dworkin v. Hart Appealed: A Meta-ethical Inquiry” (1982)13 Metaphilosophy I, in support of the conclusion that Hart prevails over Dworkin on the rule of recognition issue. I cannot discuss Nowell-Smith’s article here, except to say that Waluchow’s confidence in t e soundness of his arguments strikes me as misplaced.

27. Supra note 11 at 76, 292, 343.

28. See Perry, Stephen, “Judicial Obligation, Precedent and the Common Law” (1987) 7 Oxford J. of Legal Stud. 215 at 234-55.CrossRefGoogle Scholar

29. Simpson, A.W.B., “The Common Law and Legal Theory” in Simpson, ed., Oxford Essays in Jurisprudence, second series (Oxford: Oxford University Press, 1973) 77 at 79.Google Scholar

30. I have developed a theoretical account of the common law along these lines in Perry, supra note 28, and in Stephen Perry, “Second-Order Reasons, Uncertainty and Legal Theory” (1989) 62 S. Cal. L. Rev.913.

31. See the articles cited in the preceding note. It bears mention that this understanding of the common law more closely resembles the view of law that emerges from Dworkin’s early writings on jurisprudence, and in particular chapters 2 and 3 of Taking Rights Seriously, than it does the integrity theory of Law’s Empire.

32. There are other problems with Waluchow’s notion of institutional force, which 1 cannot pursue in detail here. For one thing, the term is used to describe quite disparate normative phenomena: in addition to legal-adjudicative powers and the phenomenon of weight, the same label is applied later in the book to the notion of one norm “overriding“ another (172–73). This indiscriminate usage undermines Waluchow’s response to Dworkin’s argument from validity (168–74). Waluchow suggests that the phenomenon of weight is consistent with the all-or-nothing quality of validity because validity and institutional force are different, compatible properties. But institutional force, as Waluchow understands the notion, is clearly best regarded as a set of properties, and the compatibility of each of them with the notion of validity must be shown individually. Another problem with the notion of institutional force is that Waluchow does not make clear whether the force in question is supposed to be a real instance of normativity that is nonetheless not moral in nature, or whether it is supposed to involve, from the point of view of the legal system, a claim of moral force which in particular instances might prove to be false. In the former case, Waluchow’s approach to the so-called problem of the normativity of law would be in line with Hart’s; in the latter case, it would be in line with Raz and Dworkin’s. Rather surprisingly, Waluchow does not directly address this issue.

33. For a discussion of Hart’s views, see Perry, supra note 3 at 112-21.

34. Supra note 13.

35. Waluchow’s third positive argument in favour of an inclusive-positivist interpretation is, it will be recalled, that that interpretation is more consistent with the language often found in constitutions themselves, such as the provision of the Canadian Constitution Act stating that any law inconsistent with the Constitution is of no force and effect (159–60). The first point to note here is that any good lawyer can give you an argument that this language is perfectly compatible with the exclusive-positivist interpretation of judicial review. Let us suppose, however, that the inclusive- positivi t interpretation is in fact the better one. If, as 1 have argued, law is properly understood as a forum within which a normative debate about the point or function of law is continually being carried o , then of course we are likely to find legal actors expressing views with which we, as theorists or other lawyers within the system, can quite properly expect to disagree. Perhaps the Charter was written by inclusive positivists, when the best understanding of Canadian law as a whole is Dworkinian in character. A related point is that, as discussed below, it is quite impossible for any legal theory to account for all the behavioural data to which law gives rise. Law is a forum for human behaviour, and within that forum we can expect different legal actors to say and do inconsistent things. One of the reasons that we require a normatively-driven conceptual framework is precisely to tame the unruly data with which law presents us.

36. See, e.g., Switzman v. Elbling, [1957] S.C.R. 285, 326–28.

37. See Michael Beloff, “Are Judges Now the Opposition?“ London Times, June 8, 1996.