Neil MacCormick's Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 24 (2):140-155 (2011)
This paper offers a diachronic reconstruction of MacCormick's theory of law and legal argumentation: In particular, two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick's gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick's acceptance of the one-right-answer thesis and the consequent thinning of the differences between MacCormick's theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick's thought, but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory
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References found in this work BETA
Robert Alexy (1989). On Necessary Relations Between Law and Morality. Ratio Juris 2 (2):167-183.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
J. L. Austin (1975). How to Do Things with Words. Clarendon Press.
Stefano Bertea (2007). A Critique of Inclusive-Positivism. Archiv Fuer Rechts- Und Sozialphilosphie 93 (1):67-81.
Richard Boyd (1988). How to Be a Moral Realist. In G. Sayre-McCord (ed.), Essays on Moral Realism. Cornell University Press. 181-228.
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