Search Results

This chapter attempts an original explanation of the independence of legal systems. The assumption made here is that constitutional independence can be explained, first, by observing that questions of sovereignty are closely related to issues which are central to the concept of a legal system; and secondly, by asserting the independence of local constitutional theory. A credible explanation for independence is set out in a series of propositions. The virtue of this explanation is that it provides an account of what lawyers, politicians and the public apparently assume: that Australia, Canada, and New Zealand are now independent and that that independence was achieved by legal means.

Hart's early philosophical work on deciding and intending, like his later work on self-reference and on intention and his decisively important concept of the internal point of view, opened jurisprudence up to a full recognition that law has its reality not only as fact but also as reasons for action. But as MacCormick showed, Hart's distinction between internal and external points of view was imprecise, and the roots of this failure can be seen in the early work on deliberation, with its Hobbesian, Humean, and Kantian misunderstandings of practical reason which are mirrored in The Concept of Law. The chapter analyses the kinds of reason for compliance that the law offers its subjects, and the extent to which these were and were not noticed in that book. After a brief comment on more recent positivism, the chapter concludes with a close examination of the elements of moral scepticism that Hart sought, with incomplete success, to keep from affecting the results of his legal-philosophical work.

This chapter explores the MacCormick case, a Scottish constitutional landmark inquest. John MacCormick, an accomplished solicitor and partner of a law firm based in Glasgow, claimed that the British Parliament breached the basic law of the Treaty of Union of 1707 when they passed the Royal Titles Act 1953. He argued that the passage of the Act demonstrated the excessive power of the Parliament. The Court of Session however still dismissed the case based on the jury's ruling that parliamentary sovereignty was a basic principle of the Scottish constitutional law. The case gained considerable attention not only due to its commitment to the Scottish indigeneity, but also due to the controversial dissenting opinion of Lord Cooper, the Lord President of the Court of Session.

Both proponents and critics of accounts of adjudication indiscriminately and simultaneously describe them as either ‘theories’ or ‘models’ or ‘descriptions’ of judicial practice with no attempt to determine whether these words are indeed synonyms, as this usage would suggest, or whether they mark out significantly different enterprises. This chapter considers a prevalent strategy of criticism of orthodox accounts of adjudication and the orthodox understanding of the nature of the enterprise of constructing such accounts. The number of writers from which examples of the former strategy are drawn is a large one, although when speaking specifically there are only two targets at which their criticism is aimed, namely, the accounts of adjudication offered by Neil MacCormick and Ronald Dworkin. It is therefore pleasingly symmetrical that both authors' descriptions of the nature of the enterprise of constructing accounts of adjudication, in conjunction with the views of Joseph Raz, are the basis of most of what follows. This chapter also outlines an often made criticism of the orthodoxy.

Suppose value pluralism is true. Will its truth have any effect whatsoever on the beliefs, self-understandings, and practices of legal academics, practitioners, and judges? This chapter argues that almost all of the jurisprudentially orthodox think value pluralism is true. This is important because many of the orthodox who believe in value pluralism fail to appreciate that the invocation of value pluralism ensures that their accounts of adjudication become all but indistinguishable, in two important and soon to be specified respects, from heretical accounts. This argument, if successful, can be regarded in two very different ways: either as an attempt to steal the thunder of heretics within contemporary legal scholarship or as an illustration of the surprisingly radical nature of orthodox jurisprudence. From either perspective, the conflict between orthodoxy and heresy in contemporary legal thought is less dramatic than it initially appears. In this chapter, only the work of Neil MacCormick, Joseph Raz, Ronald Dworkin, and a few others is tackled.

This chapter discusses the proceedings of a discussion in the School of Law in Xanadu as to whether jurisprudence should remain compulsory in their curriculum. Theorizing involves trying to get a better understanding of particulars by seeing them in a more abstract and general way. Some of the most general and abstract questions that can be pursued in theorizing are included in the six questions that Neil MacCormick suggests in this chapter. Theoretical investigation should try to dig out and expose underlying presuppositions and assumptions. All expository or explanatory or justificatory discourse has theoretical assumptions which are usually implicit. This chapter proposes three general types of justification that are advanced for compulsory courses on legal theory or jurisprudence. This chapter argues which theory has to be included in the curriculum of legal education, when to start studying for such theory, and how to teach jurisprudence.

This chapter offers an account of why, under natural law principles, the ideal of the rule of law is so central. The chapter agrees with the late Lon L. Fuller that there are important moral reasons for rulers to respect the rule of law requirement, although the specific content—its demand for clarity, nonretroactivity, promulgation, etc.—is largely procedural. The human ability to understand and act on reasons, which itself both presupposes and is presupposed by the capacity for free choice, entails, as Neil MacCormick suggests, that people are due the respect they are shown when rulers govern according to the principles of the rule of law. Although respect for the rule of law is not all that justice requires of those exercising political authority, it is nevertheless a requirement of justice.

This chapter begins with a discussion of Neil MacCormick’s institutionalist approach to legal phenomena, and argues that this theoretical framework has value as a way to study multiple offense sentencing (MOS). The most thorough completed empirical research into MOS, by Austin Lovegrove in Victoria, Australia, is then considered, alongside the leading Victorian case of Azzopardi v. R. Congruently with the expectations of institutionalism, this analysis uncovers several separate normative principles used by judges in MOS practice. These results are discussed through the lens of what can be described as “post-desert theory.” Overall, the analyses in the chapter are intended to pave the way for the development of a more coherent answer to the question: “what principles should optimally guide sentencers when dealing with cases involving multiple offenses?”

This chapter is the first of three central chapters in which the SNP’s 2002 constitutional text is examined in detail. This document, although now dated, is still the most detailed statement of the SNP’s constitutional policy ever to have been formally announced by the party. In examining the constitutional draft’s provisions relating to Parliament and the legislative branch, the chapter argues that the general structure of the proposals are sound, but that they lack the institutional and procedural clarity needed in a working constitutional text.

Chapter 1 examines in detail only the core of the pluralist claim as introduced by Neil MacCormick seminal article “Beyond the Sovereign State.” This core is analytically examined so that the entire picture it posits is teased out for the first time. This more complete picture is important as some of the new clarifications presented about this core will later prove decisive. For instance, only one tiny part of MacCormick’s core idea, which is deliberately separated and explained in this chapter, will later form the “missing link” or the minimum common denominator of the entire pluralist branch, without which constitutional pluralism could not be defended as being a separate new branch of constitutional thought. It is also observed in this chapter how the entire core of MacCormick’s idea belongs exclusively to the foundational discourse as defined by Ariadne’s Thread.

The initial finding of mapping analysis is that there are several different meanings of “constitutional pluralism” used by different authors, and that those different conceptions often appear within wholly different discourses. When they do work within the same discourse, the theories contradict each other to the degree of considering each other monist. Thus it seems that they do not constitute any distinctive branch. It looks like there is only a fancy common rhetoric behind a group of proposals with no common core that are thus falsely suggested to constitute some kind of novelty. Yet, it is argued that one “missing link” can nonetheless be found in the whole of this scholarship, and it comes from MacCormick’s foundational conception as exposed in Chapter 1. This chapter concludes by showing how this decodes the whole branch and solves its labyrinth. It also provides the whole picture of MacCormick’s conception of pluralism that has never before been fully explained.

The examined versions of constitutional pluralism fall within the scope of the pluralist branch as distinct from monism. This does not mean that all are equally sound. Nor do they harbor the same potential for further contribution to Europe and the world as such. Some of them (Weiler/MacCormick’s substantive pluralism) seem to take a sounder path than others (Walker/Maduro’s much more procedural variants), and the potential of these different visions consequently also varies. This chapter provides a comprehensive inter-theoretical assessment that engages the different approaches with each other and at the level of their deepest value underpinnings, which have been previously identified and elaborated in the mapping chapters. Such an assessment not only reveals certain remaining weaknesses in these approaches—in some greater than in others—but thereby also begins to pave the way towards the superior path, to be then explored in greater detail in the remaining chapters.

The late Neil MacCormick, in his Institutions of Law, made some important but underdeveloped claims about the relationship between civil peace and the role of the criminal law in liberal-democratic societies. The primary purpose of this chapter is to examine the issues raised by these claims, taking especially into account (i) some criticisms raised by other criminal law scholars, and (ii) MacCormick’s generic claim that ‘law is institutional normative order’. The broad conclusions of the chapter are (i) that MacCormick’s thesis has greater merit than his critics have allowed, and (ii) that debates on criminalization need to take greater account of research in social and political science, especially analyses relating to social order.

This chapter presents a response to Neil MacCormick’s paper, which analysed the nature of legal reasoning and the possibility of developing legal expert systems. It attempts to restate some of the problems raised in the paper in more precise terms. As a result of this reformulation, certain disagreements will no doubt come to light. The chapter presents an account that differs from MacCormick’s on issues such as the characterization of subsumptive reasoning; the role of truth and truth-determining procedures in law; the character of evaluative and interpretative statements; the nature of the normative premises involved in legal reasoning; and the kind of logic that one needs for its reconstruction.