David Dyzenhaus and the Holy Grail

Abstract
In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of "principles" such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.     

Growthism and the Green Backlash

Recent years have seen the growth of a 'green backlash' movement which has argued against 'the myths of environmentalism'. Many environmentalists have pointed out the political motivation and factual errors in much of these arguments. But what has not been given much attention is their underlying philosophy. To look at this is to find an ideology, related to neoliberalism, which we might call 'growthism'; based on a utopian faith in the inevitability of endless material growth, this is animated by a revolt against the very idea of limits. This faith has a potent influence on contemporary politics, which we can best see in relief: as today the only serious challenge to the neoliberal hegemony over electoral politics comes from environmentalism, so we can see revealed in the green backlash the utopianism of that unquestioned principle at the heart of all mainstream political debate - the commitment to economic growth.