JUDICAL DISCRITIONARITY BY WILFRED WALUCHOW´S INCLUSIVE JURIDICAL POSITIVISM VERSUS THE DWORKINIAN IDEA

Abstract

Judicial discritionarity is analyzed from the point of view of Ronald Dworkin, who denies its existence, even in difficult cases. On the other hand, the essay forwards the renewed positivism by Wilfrid Waluchow, who insists on its existence and necessity for difficult cases. Current investigation analyzes the definition on the meanings of discritionarity of the law philosopher and its use by authors, coupled to the enhancement of theoretical reformulations of inclusive positivism and the failures of interpretative theory, especially with regard to judge Hercules and the existence of a single correct answer.