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lecture 17. Positivism after Hart - MacCormick and institutionalism
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Lecture notes of 13 pages for the course Jurisprudence at QMUL (FIRST CLASS NOTES!)
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MacCormick and institutionalismBiographical
- Born into a political family:
His father, John MacCormick, known as ‘King John’, was one of the founding members of the
Scottish National Party (SNP) in 1934
Gradualist
Constitutionalst
(Romantic: also wrote poetry)
Three key events in Neil MacCormick’s childhood / youth:
The National Covenant (1942) – collecting signatures for self-government (Home
Rule) rather than independence
The Stealing of the Stone of Destiny (1950)
MacCormick v Lord Advocate (1953) – contesting the right of Queen Elizabeth to be
styled Elizabeth II in Scotland; Lord Cooper: Westminster (parliamentary) sovereignty
an English idea – not part of Scottish constitutional law
- Held Chair of Public Law, and the Law of Nature and Nations at the University of Edinburgh for 36
years (appointed when he was 31)
- Politician / Public Intellectual:
Critical figure for the SNP, especially behind the scenes: called the ‘greatest SNP
intellectual’
Wrote draft Constitution for an Independent Scotland
Steered the SNP towards gradualism, constitutionalism and social democracy
Stood for the SNP 5 times in Westminster elections (in hopeless constituencies)
Member of European Parliament 1999-2004 - Including Alternate Member of the
Convention on the Future of Europe (drafting the European Constitution), 2002-3
Appointed Advisor to Alec Salmond in 2007 after the SNP gained a majority
- Key publications:
‘Law as Institutional Fact’, 1972
Legal Reasoning and Legal Theory, 1978
HLA Hart, 1981
Legal Right and Social Democracy, 1982
An Institutional Theory of Law, 1986 (with Ota Weinberger)
‘Beyond the Sovereign State’, 1993
Reading for the Tutorial
Questioning Sovereignty, 1999
(Related paper ‘Liberalism, Nationalism and the Post-sovereign state’, 1996, as
reading for the lecture)
Rhetoric and the Rule of Law, 2005
Institutions of Law, 2007
Chapters 1 and 2 as reading for the lecture
Practical Reason in Law and Morality, 2008
- For more biographical details: see www.law.qmul.ac.uk/maccormick (including video / audio
Ways into MacCormick’s Theory
- Question: what is the importance – normatively / descriptively – of the ordinary person for theorising
about law?
Ordinary person: as in not official, not exercising official power – whether adjudicative,
legislative, executive
Consider how ordinary persons have been treated so far:
For Austin / Bentham: their habitual obedience identifies the sovereign
For Kelsen: law not even addressed to citizens, but to officials
For Hart: although emphasises importance of internal point of view, restricts that
importance (descriptively) to officials
(There has been some acknowledgement of the normative importance of ordinary
persons in the theories we have studied: e.g. for Fuller, the agency of those who are
, governed; for Aquinas and Finnis, the conscience of persons; for Aristotle, the
flourishing of individuals)
But MacCormick goes much further that these predecessors:
Descriptive importance of ordinary persons:
o ‘We are norm-users before we are norm-givers’ – there are normative
orders that do not depend on top-down governance (influence of Scottish
thinkers, e.g. Hume, Smith)
o Law as ‘institutional normative order’ seeks to anchor law in the practices of
ordinary persons, also opening up legal theory to non-state law
o MacCormick was always sensitive to the ‘internal point of view’ of ordinary
persons
Normative importance of ordinary persons:
o A lot of MacCormick’s theory can be read as an attempt to articulate a
theory of law that shows respect for ordinary persons (working out what
respect entails)
o Persons are ‘contextualised individuals’, and thus (may) care about various
features of the context in which they live, e.g. their culture, their language,
their religion (‘civic institutions’)
o MacCormick’s defence of ‘civic’ and ‘liberal’ nationalism was built on this
notion of respect for persons as ‘contextualised individuals’
o MacCormick’s argument that we should replace talk of sovereignty with talk
of subsidiarity (especially in the EU) reflects this ‘respect for ordinary
persons’, i.e. that respect entails we bring the making of norms as close as
we can to those who are affected by them (normative importance of self-
government)
o Ordinary persons (as well as officials) may also disagree on moral matters –
MacCormick resisted moral objectivism (so against Dworkin, Finnis), but in
ways that did not collapse into relativism (there was a role for reason,
including collective reason, in morality; so here against critical legal studies
or some extreme versions of realism)
- MacCormick also stands out in other ways – from the theorists we have already studied:
- We have hardly mentioned the EU so far: how to conceive of the EU as a legal order? How
should we conceptualise its relationship to state legal systems – the legal systems of the
member states? How should we conceive of the relationship between legal systems
generally?
MacCormick was the arguably the first contemporary legal theorist to take the
European Union seriously as a distinctive legal order
His defence of ‘constitutional pluralism’, and of Europe as a ‘post-sovereign
commonwealth’ has been hugely influential
- What is the relationship between law and the state, in particular law and the sovereign
state? Should we only give the title ‘law’ to rules / principles found in states? What about
non-state law? Why is this important?
Again, arguably MacCormick was one of the first contemporary legal theorists to
develop a theory of law consciously compatible with and supportive of legal pluralism
- More broadly, as to method:
- MacCormick was very much a synthesiser of other theories – sought to find middle paths,
and be inclusive of the insights of theories that might be thought to be radically at odds
- He sought to find ways of reconciling natural law and positivism – e.g. through his ‘post-
positivism’
- He sought to find ways of bringing together analytical methods with empirical ones – in
particular, through his concept of ‘institution’
- He developed a theory that sought to integrate political philosophy and law: so he always
mindful of the political implications of a theory of law, and made those explicit in his own
theory (precisely through his commitment to the diffusion of power, or put differently, his
aversion to theories of law that implicitly or explicitly anchor law in some exercise of
absolute, concentrated power, e.g. Austin)
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