Wilfrid J. Waluchow

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted by Jeremy Waldron, the foremost philosophical opponent of judicial review.

In his recent book, Harm to Others, Joel Feinberg addresses the question whether a person can be harmed after his or her own death, that is, whether posthumous harm is a logical possibility. There is a very strong tendency to suppose that harm to the dead is simply inconceivable. After all, there cannot be harm without a subject to be harmed, but when death occurs it appears to obliterate the subject thus excluding the possibility of harm. On the other hand, there is an inclination to believe that harmful events can indeed occur posthumously. As Aristotle observed, “a dead man is popularly believed to be capable of having both good and ill fortune—honour and dishonour and prosperity and the loss of it among his children and descendants generally—in exactly the same way as if he were alive but unaware or unobservant of what was happening”. Feinberg sides with Aristotle on this issue and develops an intriguing theory purporting to show how posthumous harms are possible. My intention in this paper is to argue that Feinberg's account meets with such serious difficulties that we must either develop an alternative theory or agree with those who claim that death logically excludes the possibility of harm. I shall begin in §2 with a brief sketch of Feinberg's provocative theory. This will be followed in §3 by my comments and criticisms. Section 4 will close with suggestions about where Feinberg's account goes wrong and how it might be repaired.

Well and Good presents a combination of "classic" and little-known cases in health care ethics. These cases, accompanied by information about the major ethical theories, give students a chance to grapple with the ethical challenges faced by health care practitioners, policy makers, and recipients. The authors' narrative style and leading questions provoke student interest and engagement, while allowing instructors the freedom to draw from the theoretical perspectives they consider most useful. This fourth edition includes an expanded discussion of feminist ethics, and new cases addressing pandemic ethics, humanitarian aid, the social determinants of health, research and aboriginal communities, and a number of other emerging issues

Like many recent works in legal theory, especially those focusing on the apparently conflicting schools of legal positivism and natural law, Waluchow’s Inclusive Legal Positivism begins by admitting a degree of perplexity about the field; indeed, he suggests that the field has fallen into “chaos”. Disturbingly, those working within legal theory appear most uncertain about what the tasks of their field are. Legal philosophers often seem to suspect strongly that at least their colleagues in the field are confused about those tasks. As a result, many recent books in legal theory are in large part exercises in legal metatheory, devoting many pages to attempts to define the purposes and goals of the field. Waluchow follows this trend and begins by expressing a desire to clarify the issues that separate those trying to give an account of the nature of law. His ultimate goal is to defend a version of legal positivism, inclusive legal positivism, that he thinks is at least implicit in H. L. A. Hart’s work.

I. INTRODUCTIONTo what extent are the existence and content of law dependent on morality? Legal Positivism is generally understood to answer: Not at all; the existence of law is one thing, its merit or demerit another thing entirely. Positivism’s historical rival, Natural Law Theory, is widely understood to answer: To a very large extent indeed: An unjust law seems to be no law at all. Recent developments in jurisprudence have rendered these understandings highly questionable and potentially misleading. Natural law theorists like John Finnis and Robert George deny that justice was ever thought by contemporary or traditional defenders of natural law theory to be a necessary condition of law,See, e.g., John Finnis, The Truth in Legal Positivism, and Robert P. George, Natural Law and Positive Law, both in THE AUTONOMY OF LAW (R. George ed. 1996). whereas positivists like H.L.A. Hart, Jules Coleman, and this author assert that morality can indeed play a key role in determining the existence and content of valid laws. But not all self-avowed positivists agree with the line pursued by Hart et al. Many follow the lead of positivism’s greatest contemporary critic, Ronald Dworkin, in claiming that this new brand of positivism, variously termed “incorporationism,”See, e.g., Jules Coleman, Authority and Reason, in THE AUTONOMY OF LAW, supra note 1; and Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381–425 (1998). “soft positivism,”H.L.A. Hart, Postscript in THE CONCEPT OF LAW (P. Bullock & J. Raz eds., 1994). or “inclusive legal positivism,”Waluchow, INCLUSIVE LEGAL POSITIVISM (1994), hereinafter referred to as ILP. Inclusive positivism, the legal theory, will be referred to as ILP. is either an untenable version of positivism or no version of positivism at all. Among the central challenges to ILP posed by its positivist critics is an objection first raised by Joseph Raz: that ILP (like Natural Law Theory and Dworkin’s “law as integrity”) is inconsistent with the practical authority that law necessarily claims for itself.

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? 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. 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. 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.

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.