D. N. MacCormick; XI*—The Obligation of Reparation, Proceedings of the Aristotelian Society, Volume 78, Issue 1, 1 June 1978, Pages 175–194, https://doi.org/10.

D. N. MacCormick; XI*—The Obligation of Reparation, Proceedings of the Aristotelian Society, Volume 78, Issue 1, 1 June 1978, Pages 175–194, https://doi.org/10.

Este artículo tiene cuatro secciones principales. En la primera, planteo algunas cuestiones sobre la ambigüedad de la idea de país libre, y muestro cómo algunas consideraciones que se siguen de ella han conducido a un desencanto del nacionalismo, más como un tema filosófico que como un fenómeno histórico lamentable. En la segunda, asumo la postura quizás antitética de que, respecto a la descolonización y a la perestroika, la mayoría de la gente parece tener una opinión muy radical en favor de (...) la autodeterminación nacional, sin realmente relacionarla con aquella concepción que rechaza la posibilidad de que el nacionalismo ocupe un lugar dentro de una filosofía política normativa. En la tercera, vuelvo a las ideas de libertad con la esperanza de despejar la confusión y, quizás, de trascender incluso la contradicción entre las secciones primera y segunda. Finalmente, afronto directamente la cuestión de si el nacionalismo es filosóficamente creíble, y acabo con la recomendación de lo que considero una teoría liberal y moderada del nacionalismo. (shrink)

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.

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)

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.

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.

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)

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 ...

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 juridical character of the European Union.

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.

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)

Papers presented at the IVR 11th World Congress, Helsinki, 1983.

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 (‘conventions’); 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)

BackgroundConcerns about decision making related to resuscitation have led to two important challenges in the courts resulting in new legal precedents for decision-making practice. Systematic research investigating the experiences of doctors involved in decisions about resuscitation in light of the recent changes in law remains lacking.AimTo analyse the practice of resuscitation decision making on hospital wards from the perspectives of doctors.DesignThe data presented in this paper were collected as part of a wider research study of end-of-life care in an acute (...) hospital setting. Data collection comprised ethnographic non-participant observation on two acute hospital wards and individual interviews with patients, relatives and healthcare professionals caring for patients thought to be approaching the end of life. Data were analysed using a constructivist grounded theory approach.ResultsDiscussions and decision making about resuscitation present many challenges for those involved on acute medical wards. The data highlight the potential for multiple interpretations of legal precedents, creating misunderstandings that may impact patient care in less positive ways.ConclusionsThis paper provides unique insights into how doctors respond to the changing medico-legal culture and the subsequent effects on patient care. It demonstrates how the juridification of medical practice can occur. It highlights the potential benefit of a structure to support clinicians, patients and relatives in discussing and navigating decisions around care at the end of life in line with the patient’s wishes and preferences. Recommendations for future research are made and legal ramifications are discussed. (shrink)

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.

“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined (...) in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

"16 'On Justification and Interpretation', ARSP-Beiheft, 53, pp. 255-68." -- "17 'Authority Reasons in Legal Interpretation and Moral Reasoning', ARSP Supplementa (III), pp. 144-52." -- "18 'Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification', Cornell Law Review, 63, pp. 707-88." -- "19 'Reasonableness and Objectivity', Notre Dame Law Review, 74, pp. 1575-603.

Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist ‐ or at least some of his followers on the contemporary British and American political scene ‐ have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule of law (...) to social justice. (shrink)