This study focuses on current jurisprudential debate between the "positivist" views of Herbert Hart and the "rights thesis" of Ronald Dworkin. MacCormick provides a critical analysis of the Dworkin position while also modifying Hart's. It stands firmly on its own as a contribution to an extensive literature.

Robert Alexy develops his influential theory of legal reasoning exploring the nature of legal argumentation and its relation to practical reasoning. In doing so he sheds light on fundamental questions of law and rationality, which are as crucial to practising lawyers and law students as they are to scholars of legal theory.

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society : law (...) and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

Introduction HLA Hart: A biographical sketch Jurisprudence is the theoretical study of a practical subject. Its object is to achieve a systematic and ...

The thesis that propositions of law are intrinsically arguable is opposed by the antithesis that the Rule of Law is valued for the sake of legal certainty. The synthesis considers the insights of theories of rhetoric and proceduralist theories of practical reason, then locates the problem of indeterminacy of law in the context of the challengeable character of governmental action under free governments. This is not incompatible with, but required by the Rule of Law, which is misstated as securing legal (...) certainty. Defeasible certainty is the most that is desirable or achievable. (shrink)

This work is a controversial collection of interrelated papers investigating and arguing about issues of concern to lawyers and politicians today. MacCormick combines a scholarly concern with leading thinkers such as John Locke, Lord Stair, Adam Smith and David Hume, John Rawls, Ronald Dworkin, and Patrick Atiyah, and stringently argued view of questions of political obligation, civil liberty, and legal rights.

This is a controversial work of applied legal theory, addressing urgent contemporary questions about law and the State, about the character of the UK as a state, and about the judicial character of the European Union in its relationship with the member states of the Union. It is also a contribution to political theory in its discussion of the rule of law, the theory of sovereignty, and the principles of liberal nationalism. It combines a statement and application of the `institutional (...) theory of law' with a balanced and carefully argued version of contemporary Scottish nationalism. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

Incentives and reasons -- Values and human nature -- Right and wrong -- Questions of trust -- Autonomy and freedom -- Obedience, freedom, and engagement : or utility? -- Society, property, and commerce -- On justice -- Using freedom well -- Judging : legal cases and moral questions -- Practical reason, law, and state.

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding ; some articulated in context of two-tier normative order: `rules', explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, `institutional facts ' depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either `absolute application' or `strict application' or `discretionary application', depending on second-tier empowerment. Discretion can be guided by (...) values, principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: `constitutive rule' rejected in favour of `underlying principle', structure of `institutive, consequential and terminative' rules explained and defended. Ruiter's conception of `institutional `régime' considered and adopted, validity of norms and normative `régimes' considered and differentiated from truth of statements of institutional fact. (shrink)

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding ; some articulated in context of two-tier normative order: 'rules', explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, 'institutional facts' depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either 'absolute application' or 'strict application' or 'discretionary application', depending on second-tier empowerment. Discretion can be guided by values, (...) principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: 'constitutive rule' rejected in favour of 'underlying principle', structure of 'institutive, consequential and terminative' rules explained and defended. Ruiter's conception of 'institutional 'régime' considered and adopted, validity of norms and normative 'régimes' considered and differentiated from truth of statements of institutional fact. (shrink)

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a ‘commonwealth’, comprising a commonwealth of ‘post-sovereign’ states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or ‘people’ for democracy to be possible? If not democratic, what is it? Monarchy, (...) oligarchy, or democracy, or a ‘mixed constitution’? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth. (shrink)

Is there a 'constitutional moment' in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a 'commonwealth', comprising a commonwealth of 'post-sovereign' states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or 'people' for democracy to be possible? If not democratic, what is it? (...) Monarchy, oligarchy, or democracy, or a 'mixed constitution'? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth. (shrink)

Leading contemporary essays on interpretation are assembled in this volume, which offsets them against a small number of classical works from earlier periods. It has long been recognized that textual sources (constitutions, statutes, precedents, commentaries) are central to developed systems of law and that interpretation of such texts is one highly important element in adjudication, legal practice and legal scholarship. Scholars have also contended that the totality of legal activity is interpretive in a wider sense and debates about objectivity have (...) raged. The reasons for this development are here critically scrutinized. (shrink)

"The present volume deals with a number of fundamental issues in philosophy of law and social philosophy. The reviews and perspectives it represents are thoroughly international in scope and range, with the participation of leading thinkers from six continents. Within the overall theme of 'Enlightenment, Rights and Revolution', each of the sub-themes has been so well explored by its authors that the whole does amount to more than the sum of its parts. As editors, we might have been temped to (...) claim credit for this beyond our due; in truth, however, the authors of the essays which make up the book did it all with a minimum of editorial intervention, and in a very short time. We are profoundly grateful to them all."--Preface. (shrink)

In 1999, my work as a full-time law professor came to a temporary halt. Shortly before this happened, I brought out a book called Questioning Sovereignty 1 . This attempted to apply my version of the institutional theory of law to certain urgent contemporary questions in the philosophy of law and political philosophy circulating around the ideas and the roles of law, state, and nation in ‘the European Commonwealth’ (as I there called it). Then, partly by chance, I was elected (...) as one of the eight members of the European Parliament representing Scotland. My theoretical questions thus acquired a directly practical edge. All the more so at the end of 2001, for then I was most fortunately elected to take part in the Convention on the Future of Europe set up by the European Council at Laeken in December of that year. (shrink)

El lugar común de que las proposiciones jurídicas son intrínsecamente argumentabIes se opone al lugar común rival de que el Estado de Derecho es valorado en consideración a la certeza jurídica. La reconciliación de esos aparentes contrarios toma en cuenta las aportaciones de las teorías de la retórica y de las teorías procedímentales de la razón práctica, situando así el problema de la indeterminación del Derecho en el contexto del carácter cuestionable de la acción estatal en los Estados libres. Esto (...) no es incompatible con, sino exigido por, el Estado de Derecho, que es indebidamente considerada como asegurador de la certeza jurídica; la certeza derrotable es lo que resulta más deseable o alcanzable. (shrink)