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

Abstract

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.