Waluchow and Dworkin’s Disagreement on Legal Theory, Precedent and Adjudication: A Family Affair

Abstract

In this paper, I would like to address some of the criticisms that Waluchow raised against Dworkin that appear in his book Inclusive Legal Positivism, in particular (i) the response to Dworkin’s methodological contention that jurisprudence should be regarded as a first-order interpretation of the law and (ii) the contention that Dworkin’s “law as integrity” provides a deficient description of the practice of precedent, inasmuch as it does not distinguish between theories of law and theories of adjudication and creates a set of puzzles that cannot be resolved with Dworkin’s interpretive account of the legal practice. In response to Waluchow, I argue that regardless of their methodological disagreements, law as integrity and inclusive legal positivism are very similar descriptions of the social practice of law, and that the former can also provide a sound theory of precedent and adjudication.