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" Inclusive legal positivism / "
W.J. Waluchow.
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BL
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| Record Number
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983971
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| Doc. No
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b738341
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| Main Entry
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Waluchow, Wilfrid J.
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| Title & Author
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Inclusive legal positivism /\ W.J. Waluchow.
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| Publication Statement
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Oxford :: Clarendon Press ;New York :: Oxford University Press,, 1994.
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| Page. NO
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x, 290 pages ;; 23 cm
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| ISBN
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0198258127
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: 9780198258124
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| Bibliographies/Indexes
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Includes bibliographical references (pages 273-279) and index.
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| Contents
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1. Introduction. 1. Indeterminate Boundaries. 2. The Structure of Our Inquiry -- 2. Theories and Conceptions. 1. The Grounds of Law. 2. The Force of Law. 3. Dworkinian Conceptions of Law. 4. Conceptions and Evaluation. 5. Values and Legal Theory -- 3. The Forces of Law. 2. Law, Compliance, and Adjudication. 3. The Institutional Forces of Law. 4. Rights Against Hercules. 5. The Theory of Compliance. 6. Separate But Connected. 7. An Alternative -- 4. Inclusive V. Exclusive Positivism. 1. The Forms and Limits of Positivism. 2. Hart's Arguments. 3. Bentham's Causal/Moral Argument. 4. The Invalidity of Causal/Moral Arguments. 5. A Dubious Causal Connection. 6. The Argument From Intellectual Clarity. 7. Three Popular Arguments. 8. The Argument From Explanatory Power. 9. The Argument From Function. 10. The Authority Argument: An Outline. 11. The Authority Argument: A Critique. 12. Taking Stock -- 5. Charter Challenges. 2. Moral Arguments? 3. Does it Figure in the Right Way?
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4. An Alternative Exclusive Account? -- 6. Hercules. 2. The Validity Argument. 3. The Pedigree Argument. 4. The Argument From Function -- 7. Discretion and Legal Theory. 1. The Discretion Argument. 2. Strong and Weak Discretion. 3. Two Interpretations. 4. Two Objections. 5. Having and Exercising Strong Discretion. 6. A Significant Distinction? 7. A Return to the Discretion Argument. 8. Raz's Challenge -- 8. Morals and the Meaning of Laws. 2. Hart's Early Theory. 3. The Necessity Argument. 4. The Desirability Argument. 5. The Intention Argument. 6. The Rule of Law Argument 1. 7. The Rule of Law Argument 2. 8. Later Hart.
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| Abstract
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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. Its central theoretical questions are: Does the existence or content of positive law ever depend on moral considerations?
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If so, is this fact consistent with legal positivism? The author shows how inclusive positivism allows one to answer yes to both of these questions.
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In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering differing kinds of theories and attempting to answer different questions.
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There is also a failure, principally on the part of Ronald Dworkin, to characterize opposing theories correctly. The clarity of Waluchow's work will help to remove the confusion which has hitherto marred some jurisprudential debate, particularly about Dworkin's work.
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| Subject
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Legal positivism.
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Legal positivism.
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Positivisme juridique.
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Rechtspositivisme.
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Rechtstheorie.
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| Dewey Classification
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340/.1
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| LC Classification
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K331.W35 1994
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| NLM classification
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86.04bcl
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86.04.bcl
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KA44.W358 1994moys
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KA44.W3 WALmoys
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