Law, Morality and Judicial Reasoning

This book provides a critical outlook on, and an inquiry into the practical implications of, the works of Professor W.J. Waluchow, one of the most important jurisprudence scholars of the early twenty-first century, while also reflecting on the interconnections between his legal theory and his theory of constitutional interpretation. It also features an interview with Waluchow, in which he responds to some of the chapters and shares a first-person perspective on his main philosophical ideas, how they emerged, and how they can be further developed and applied.

The book makes a valuable contribution to contemporary legal philosophy by asking and providing different answers (from prominent legal philosophers and newer scholars in the field) to questions such as 'How does Waluchow's jurisprudence relate to his theories of legal reasoning and constitutional interpretation?', 'On what terms should we understand inclusive legal positivism?', 'Can inclusive legal positivism be reconciled with an interpretivist theory of adjudication?', 'How does it compare with Raz's model of legal authority?', 'Can Waluchow's notion of community constitutional morality be applied to contexts such as international law, pluralist legal communities, and indigenous laws?', and 'Is Waluchow's methodology equipped to provide interpretive directives in unstable and extremely unequal legal systems?'.

The chapters, all written by experts on jurisprudence (including some of the scholars who helped develop the tradition known as inclusive legal positivism), offer a unique analysis of Waluchow's most complex and intriguing theses, providing not only a valuable exegetical analysis of his work but also a range of answers to the challenge of interpreting legal and constitutional values, as well as practical resolutions to persisting controversies in the philosophy of law.

Presents a unique book dedicated to study in depth a widely appreciated and globally acknowledged legal philosophy Includes comprehensive studies from experienced and senior scholars Provides original contributions with high quality and interest across different areas of law like constitutional law and jurisprudence

Auteur

Prof. Thomas Bustamante is Professor of Legal Theory and Philosophy of Law at the Federal University of Minas Gerais, Brazil, and Research Productivity Fellow of the National Council for Scientific and Technological Development (CNPq), Brazil. He was a Global Research Fellow with a Fulbright Visiting Research Grant at the New York University, from 2020 to 2022, and a Research Fellow at King's College London from 2022 to 2023. He holds a PhD from the Pontifical Catholic University, Rio de Janeiro.

Prof. Saulo de Matos is Professor of Legal Theory and Philosophy of Law at the Federal University of Pará, Brazil, and Vice-director of the Master and PhD Program in Human Rights of the same University. He holds a PhD from University of Gottingen, Germany, and a Master's degree from the University of Heidelberg, Germany.

Prof. André Coelho is Professor of Legal Theory and Philosophy of Law at the Law School of the Federal University of Rio de Janeiro, in Brazil. He holds an M.Phil and a Ph.D in Philosophy from the Federal University of Santa Catarina, Brazil, with a Research Visit at the Goethe Universität of Frankfurt, Germany. He has previously taught at CESUPA and The University of Amazon, both in Brazil.

Contenu

Introduction.- I. WALUCHOW'S JURISPRUDENCE RESTATED.- Incorporationism, Inclusivism, and Indeterminacy.- Inclusive Legal Positivism and the Fallibility of Officials.- Responses to Waluchow on Raz.- Waluchow on Institutional Forces of Law.- Some issues concerning Waluchow's critique of Dworkin.- Competing Legal Positivisms, Methodology and Distinctive Visions of Law.- II. CONSTITUTIONAL REASONING, POLITICAL MORALITY AND JUDICIAL REVIEW.- Waluchow and Dworkin's Disagreement on Legal Theory, Precedent and Adjudication: A Family Affair.- Lessons from Waluchow: Necessity, Determinacy, and Intelligibility of (Weak) Judicial Discretion.- Fixed and Non-fixed Meaning in Constitutional Interpretation: Waluchow's Answer to Alice's Paradox.- Waluchow's Theory of Constitutional Interpretation from a Rhetorical-Argumentative Point of View.- Waluchow on Reasoning with the Morality of the Community.- III. CONSTITUTIONAL MORALITY APPLIED.- Reconciliation and the Living Tree Metaphor.- Global Justice, Indigenous Knowledge, and the Epistemic Merits of Institutionally Embodied Moral Intuitions.- The common law methodology in a barren soil: prospective judicial precedents and abstract judicial review.- Democracy and Adjudication in Latin America: A Critical Analysis of Wil Waluchow's Common Law Theory of Judicial Review.- IV. INTERVIEW.- Interview with Professor Wil J. Waluchow.