David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Jurisprudence 1 (1):121-136 (2010)
In a quartet of books, Neil MacCormick develops in great detail his institutional theory of law. According to this theory, law is an institutional normative order. As we shall see, save for one key difference, MacCormick's institutional theory of a legal system closely parallels Hart's positivist theory. Though his theory of a legal system looks very much like Hart's positivist theory, he concludes that a central positivist tenet is false. He argues that, contra positivism, moral considerations are necessarily determinants of a legal system's laws; for, on his account, radically unjust norms necessarily are not law. Thus, MacCormick theory presents us with a surprising juxtaposition - in his words, a post-positivist synthesis of positivism and natural law theory. In this essay, I examine whether it is possible to reach a natural law conclusion on the basis of what is traditionally taken to be a positivist foundation. I argue that MacCormick's and Julie Dickson's attempts (on MacCormick's behalf) to do this are not promising. However, I also argue that MacCormick's theory of law has resources for a more promising approach to this argument, and I attempt to mine these resources
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Muriel De Groot & Mirjan Oude Vrielink (1998). Legal Theory and Sociological Facts. Law and Philosophy 17 (3):251-270.
M. Groot & O. M. (1998). Legal Theory and Sociological Facts. Law and Philosophy 17 (3):251-270.
Thom Brooks (2007). Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory. Georgia State University Law Review 23 (3):513-60.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
M. J. Detmold (1988). Book Review:An Institutional Theory of Law: New Approaches to Legal Positivism. Neil MacCormick, Ota Weinberger. [REVIEW] Ethics 98 (2):395-.
James Lee (2010). MacCormick's Jurisprudence Determined. Jurisprudence 1 (1):105-119.
F. Atria (1999). Legal Reasoning and Legal Theory Revisited. Law and Philosophy 18 (5):537-577.
Neil MacCormick (1978). Legal Reasoning and Legal Theory. Oxford University Press.
Cristobal Orrego (2010). Autonomy Within the Limits of Sympathy: A Comment on Neil MacCormick's Practical Reason in Law and Morality. Jurisprudence 1 (1):137-146.
Added to index2010-08-16
Total downloads23 ( #73,805 of 1,098,981 )
Recent downloads (6 months)4 ( #79,853 of 1,098,981 )
How can I increase my downloads?