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

25 Pages Posted: 26 Feb 2019

See all articles by Thomas Bustamante

Thomas Bustamante

Federal University of Minas Gerais (UFMG)

Date Written: January 11, 2019

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.

Keywords: Waluchow, Dworkin, Jurisprudence, Precedent, Adjudication

Suggested Citation

Bustamante, Thomas da Rosa, Waluchow and Dworkin’s Disagreement on Legal Theory, Precedent and Adjudication: A Family Affair (January 11, 2019). Available at SSRN: https://ssrn.com/abstract=3331675 or http://dx.doi.org/10.2139/ssrn.3331675

Thomas da Rosa Bustamante (Contact Author)

Federal University of Minas Gerais (UFMG) ( email )

Av. Antonio Carlos, 6627
Belo Horizonte, Minas Gerais 31270-901
Brazil

HOME PAGE: http://www.ufmg.br

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