W. J. Waluchow - Böcker

This book develops a general theory of law – inclusive legal positivism – which seeks to remain within the tradition represented by authors such as Austin, Hart, MacCormick, and Raz, while sharing some of the virtues of both classical and modern theories of natural law, as represented by authors such as Aquinas, Fuller, Finnis, and Dworkin. W. J. Walchow articulates and defends his own version of legal positivism, which is a refinement and development of the views of H. L. A. Hart. The author shows how inclusive legal positivism demonstrates that the existence or content of positive law does depend on moral considerations; and that this is consistent with legal positivism.In addition, Waluchow helps to remove the confusion which has marred current jurisprudential debates about the nature of law. He argues that these debates are often clouded by failures to appreciate that different theorists are offering different kinds of theories and attempting to answer different questions. He also accuses theorists, principally Ronald Dworkin, of failing to characterize opposing theories correctly.

In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.