Wilfrid J. Waluchow

Part I The Unity of Value -- A hedgehog's unity of value / Joseph Raz -- Part II Political Values : Legitimacy, Authority, and Collective Responsibility -- Political resistance for hedgehogs / Candice Delmas -- Ronald Dworkin, state consent, and progressive cosmopolitanism / Thomas Christiano -- To fill or not to fill individual responsibility gaps? / Franðcois Tanguay-Renaud -- Inheritance and hypothetical insurance / Daniel Halliday -- Part III General Jurisprudence : Contesting the Unity of Law and Value -- Putting law in its place / Lawrence G. Sager -- Dworkin and unjust law / David Dyzenhaus -- The grounds of law / Luâis Duarte d'Almeida -- Immodesty in Dworkin's theory : the lines dividing different kinds of conceptual theory of law / Kenneth Einar Himma -- Imperialism and importance in Dworkin's jurisprudence / Michael Giudice -- A theory of legal obligation / Christopher Essert -- Part IV Value in Law -- Originalism and constructive interpretation / David O. Brink -- Was Dworkin an originalist? / Lawrence A. Alexander -- The moral reading of constitutions / Connie S. Rosati -- Authority, intention, and interpretation / Aditi Bagchi -- Concern and respect in procedural law / Hamish Stewart.

In Law’s Empire, Ronald Dworkin introduces an important distinction between what he calls the ‘grounds’ and the ‘force’ of law. The former primarily interest Dworkin in LE and concern the “circumstances in which particular propositions of law should be taken to be sound or true.” (110) Propositions of law, we are told, are “all the various statements and claims people make about what the law allows or prohibits or entitles them to have.” (4) That Canadians owing income tax to the federal government must file their returns before April 30 or face a late penalty is presumably an example of a proposition of law. That the United States constitution prohibits slavery is another. These (true) propositions of law simply report the law’s (present) requirements, requirements which normally should be respected but which might justifiably be disobeyed or disregarded in exceptional cases. A true proposition of law, then, does not necessarily entail an answer to the question: What should I do, or decide (if called upon to render a judicial decision)? It also does not necessarily entail an answer to the question: Should the coercive power of the state be exercised against this person?

The author's primary objective is to show that versions of legal positivism, according to which legal validity sometimes depends on moral validity (Inclusive Legal Positivism), are theoretically preferable to those forms of positivism (Exclusive Legal Positivism) which deny this possibility. The author attempts to substantiate this conclusion by demonstrating that Inclusive Legal Positivism provides a better theoretical account of challenges to legal validity based on a document like the Canadian Charter of Rights and Freedoms. His secondary aim is to show that the choice between Inclusive and Exclusive Legal Positivism can have important consequences for legal practice.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be putResumen:En este ensayo el autor defiende a H. L. A. Hart de dos críticas recurrentes a su teoría de las normas sociales y a las obligaciones que regularmente acompañan a estas normas. Ambas críticas, sostiene el autor, descansan sobre malos entendidos o caracterizaciones equivocadas de lo que Hart en realidad se propuso. Estos malentendidos son explicados plausiblemente a través de la falta de capacidad de los críticos de apreciar plenamente dos de las valiosas lecciones que Hart deseaba expresar en su lectura inaugural. En primer lugar, palabras como “norma” y “obligación” no deberían ser sacadas de sus distintos contextos de uso para someterlas a definiciones abstractas y al análisis filosófico. En segundo lugar, cuando se analizan enunciados en los cuales figuran tales palabras, tanto en la teoría como en la práctica del derecho, resulta primordial tener en mente las diversas funciones que esos enunciados puedan tener y los diferentes propósitos para los cuáles esos enunciados fueron proferidos.

Constitutional Charters or Bill of Rights have been applauded because of the protection they provide to minorities and also in ensuring and protecting fundamental rights, however, Charters have been criticized for being considered morally and politically objectionable. The author responds to Charter critics most serious objections and offers some reasons for adopting an alternative framework.Resumen:Las cartas constitucionales o declaraciones de derechos han sido aplaudidas por la protección que brindan a las minorías y su función de asegurar derechos fundamentales; sin embargo, también han sido criticadas por ser consideradas moral y políticamente refutables. El autor responde a las objeciones más serias de los críticos y ofrece algunas razones para adoptar un marco alternativo, de acuerdo al cual, las cartas no aspiran a establecer puntos de acuerdo y compromisos previos.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be put.

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges.

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.