Michael Giudice

Unconstitutionality, Invalidity, and Charter Challenges

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canadas rule of recognition. In this paper I challenge Waluchows inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Razs notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.

Existence and Justification Conditions of Law

Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.

Complementing Comparison: Renewing Analytical Legal Theory to Meet the Explanatory Challenge of Globalisation

Abstract It is now beyond question that legal theory risks parochialism and diminished interest if it fails to understand the implications of globalisation for law. Historically state-focused analytical legal theory, once a dominant force in jurisprudential debate, is thought by some to be especially likely to fade into irrelevance. William Twining has been a particularly acute critic of analytical legal theory, offering arguments whose force is amplified by Twinings long history of work from within that tradition. Twining argues that analytical legal theorys state-centred approach and analytic method of conceptual analysis render it incapable of taking globalisation seriously. In response, we argue that analytical legal theorists might well take Twinings criticisms of them not as the end of their relevance, but instead as a challenge to explain how their methods and subject matter are capable of renewal and expansion. In this paper we take some initial steps towards showing how this might be done.

Analytical Jurisprudence and Contingency

Someone interested in analytical jurisprudence is bound to find self-characterisations of the discipline both intriguing and frustrating. They are intriguing since they offer an attempt at articulating the methods and purposes of a complex enterprise with a long and rich history. They are frustrating since they often appear as brief preliminaries or short concluding remarks which leave unanswered as many questions as they answer. Perhaps two of the best known statements of the task of analytical jurisprudence are made by H. L. A. Hart and Joseph Raz. In the Preface to his most famous work, The Concept of Law, Hart said that his book might be characterised as an ‘essay in descriptive sociology’,1 and in the concluding section of a now famous article, Raz wrote that it ‘is a major task of legal theory to advance our understanding of society by helping us understand how people understand themselves.’2 Fortunately, in recent years reflection on the methods and purposes of analytical jurisprudence has grown from isolated statements into sustained self-reflection, as there is an emerging and sophisticated literature focused squarely on the methodology of legal theory itself.3 The range of existing views, and the insights they draw from recent work in the social sciences, epistemology, and philosophy of language, are far too broad to treat properly in one short essay, so I propose to concentrate on what I think is a critical issue, which is not yet settled, in the development and understanding of analytical jurisprudence.