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² Id at 673.Google Scholar

³ Id. at 677.Google Scholar

⁴ Id. at 678.Google Scholar

⁵ Id. at 678.Google Scholar

⁶ Id. at 678.Google Scholar

⁷ Id. at 679.Google Scholar

⁸ Id. at 680.Google Scholar

⁹ Id. at 680 (emphasis added).Google Scholar

¹⁰ A natural lawyer would have to say that the normativity of law is justified by some objective moral principles which cannot be entirely excluded from practical legal reasoning. See generally John Finnis, Natural Law and Natural Rights (1979). A pragmatist would never deny that reasons of policy and arguments from other non-strictly institutionalized materials play an important part in legal argumentation, although she would tend to be skeptical about the role of moral principles in legal practice. See generally Richard Posner, The Problems of Jurisprudence (1993). A non-positivist like Dworkin or Alexy, finally, would argue that the key principles of political morality are in any case part of the materials that lawyers use in their practical activity. See generally Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (2002); Dworkin, Ronald, Law's Empire (1986).Google Scholar

¹¹ Habermas, Jürgen, Between Facts and Norms—Contributions to a Discourse Theory of Law and Democracy 49 (1996).Google Scholar

¹² See generally Luhmann, Niklas, Law as a Social System (2008).Google Scholar

¹³ Habermas, , supra note 11, at 50.Google Scholar

¹⁴ Id. at 51.Google Scholar

¹⁵ Joseph, Raz, Ethics in the Public Domain: Essays in Morality of Law and Politics 189 (1994).Google Scholar

¹⁶ Id. at 190.Google Scholar

¹⁷ Kelsen, Hans, Introduction to the Problems of Legal Theory 7 (1992).Google Scholar

¹⁸ Austin, John, The Province of Jurisprudence Determined 1 (1832).Google Scholar

¹⁹ Hart, H. L. A., The Concept of Law (2d ed. 1994).Google Scholar

²⁰ Dworkin, Ronald, A Reply, in Ronald Dworkin and Contemporary Jurisprudence 254 (Marshall Cohen ed., 1984).Google Scholar

²¹ Id. at 256.Google Scholar

²² Id. at 255.Google Scholar

²³ Hobbes, Thomas, Leviathan para., I. 15 (1651).Google Scholar

²⁴ Id., para., I. 14.Google Scholar

²⁵ Petroski, , supra note 1, at 682.Google Scholar

²⁶ Hart, H. L. A., Essays on Bentham: Jurisprudence and Political Philosophy 21–39 (1982).Google Scholar

²⁷ Schofield, Philip, Jeremy Bentham and nineteenth-century English jurisprudence 12 J. Legal Hist. 58, 60 (1991).Google Scholar

²⁸ The best defense of this interpretation of Bentham can be found in Gerald Postema, Bentham and the Common Law Tradition (1986).Google Scholar

²⁹ Schofield, , supra note 27, at 63.Google Scholar

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³¹ Hart, , The Concept of Law, supra note 19, at 240 (emphasis in original).Google Scholar

³² Hart, H. L. A., Positivism and the Separation of Law and Morals, in The Philosophy of Law 33 (Ronald Dworkin ed., 1977).Google Scholar

³³ Hart, , supra note 19, at 92–93.Google Scholar

³⁴ Dworkin, , supra note 20, at 255.Google Scholar

³⁵ Raz, , supra note 15, at 211.Google Scholar

³⁶ Id. at 196.Google Scholar

³⁷ Joseph, Raz, The Morality of Freedom 53 (1986) (emphasis removed).Google Scholar

³⁸ Joseph, Raz, The Authority of Law: Essays on Law and Morality 315 (2d ed. 2009).Google Scholar

³⁹ Alexy, Robert, The nature of the arguments about the nature of law, in Rights, Culture and the Law—Themes from the Legal and Political Philosophy of Joseph Raz 4 (L. H. Meyer et al. eds., 2003).Google Scholar

⁴⁰ Alexy, Robert, The Nature of Legal Philosophy 17 Ratio Juris 156, 157 (2004).Google Scholar

⁴¹ Id. at 158. The same argument is found in Alexy, supra note 39, at 3.Google Scholar

⁴² Alexy, , supra note 40, at 158.Google Scholar

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⁴⁴ This is precisely what Dworkin means, for instance, when he holds that in any legal dispute there is always the possibility of a “theoretical disagreement” about the law. In hard cases, judges and lawyers may disagree not only about whether or not a particular act falls within the scope of a master rule such as Hart's rule of recognition, but rather about the content of the master rule itself. The criterion on which one relies to identify the law in a given case may depend on the theory one upholds to develop his conception of law. See, e.g., Dworkin, supra note 10, at 4–5. To pick up an example, in addition to the cases quoted by Dworkin in the first two chapters of his Law's Empire, we can mention the decision of the House of Lords in Jackson v. Her Majesty's Attorney General [2005] UKHL 56. In this case, the Law Lords disagreed not only about the validity of a particular rule, but about the rule of recognition itself. For the particulars of this case, see Michael Plaxton, The concept of legislation: Jackson and Others v Her Majesty's Attorney-General, 69 Mod. L. Rev. 249, 249–61 (2006).Google Scholar

⁴⁵ MacCormick, Neil, Institutions of Law: An Essay in Legal Theory 264 (2007).Google Scholar

⁴⁶ Petroski, , supra note 1, at 672.Google Scholar

⁴⁷ Id. at 672-3.Google Scholar

⁴⁸ Id. at 674.Google Scholar

⁴⁹ Id., at 674, note 47.Google Scholar

⁵⁰ Id. at 674.Google Scholar

⁵¹ Id. at 675.Google Scholar

⁵² Id. at 676.Google Scholar

⁵³ A contemporary positivist might reply that positivism no longer advocates the first thesis (Separability). This kind of argument is part of a general attempt to narrow down positivism in order to escape from objections raised by Dworkin and other post-positivists such as MacCormick. Nonetheless, I believe this does not affect my argument here, for it suffices to prove that MacCormick rejects the so-called Sources Thesis in order to claim that his theory is very different from positivism.Google Scholar

⁵⁴ To illustrate this point, we can quote the following excerpt from an interview that MacCormick gave to Manuel Atienza on the occasion of the publication of his Institutions of Law: “The most illuminating and lasting aspect of Hart's writings has to do with the need to understand any conduct regulated by rules from the ‘internal point of view.’ This is essentially to develop a clear and convincing theory of norms. But rules are just one type of norm. The analysis of Law as a system of primary and secondary rules, although a valuable intuition, is at the end incomplete and unsatisfactory. A fresh start is needed.” Manuel Atienza, Entrevista a Neil MacCormick 29 Doxa—Cuadernos de filosofía del derecho 479, 482 (2006) (trans. unknown).Google Scholar

⁵⁵ MacCormick, Neil, Legal Reasoning and Legal Theory 63 (1978).Google Scholar

⁵⁶ MacCormick, , supra note 45, at 301.Google Scholar

⁵⁷ Id. at 295.Google Scholar

⁵⁸ Id. at 6.Google Scholar

⁵⁹ Id. at 302.Google Scholar

⁶⁰ Id. at 292. Like Alexy, MacCormick claims that legal doctrine has not only empirical and analytical dimensions, but also a normative one.Google Scholar

⁶¹ Petroski, , supra note 1, at 686.Google Scholar

⁶² Id. at 686-7.Google Scholar

⁶³ Id. at 687.Google Scholar

⁶⁴ Dworkin, , supra note 10, at 90.Google Scholar

⁶⁵ MacCormick, Neil, Rhetoric and the Rule of Law: A Theory of Legal Reasoning 6 (2005). It is not a surprise, therefore, that MacCormick has recently confessed that his interest in legal philosophy developed from an attempt to reconcile philosophy and legal practice. When asked by Manuel Atienza about the roots of his legal philosophy, MacCormick answered in the following way: “M. A.: Why have you become interested in legal philosophy? N. M.: Because I was fascinated about philosophy, but wanted to dedicate myself to the practice of law.” Atienza, supra note 54, at 480.Google Scholar

⁶⁶ MacCormick, , supra note 65, at 6.Google Scholar

⁶⁷ Id. at 10.Google Scholar

⁶⁸ Id. at 14–15.Google Scholar

⁶⁹ Id. at 13 (emphasis added).Google Scholar

⁷⁰ Id. at 16.Google Scholar

⁷¹ Id. at 26.Google Scholar

⁷² Id. Google Scholar

⁷³ Id. at 241.Google Scholar

⁷⁴ Id. at 244.Google Scholar

⁷⁵ In this particular, an inclusive or “soft” positivist would have to concede that it is at least theoretically possible to conceive a perfectly valid legal system that does not incorporate any moral principles to its rule of recognition. Whatever connections one can find between law and morality will be contingent, as opposed to necessary. See generally Jules Coleman, Negative and Positive Positivism, in Ronald Dworkin and Contemporary Jurisprudence (Marshall Cohen ed., 1984); Waluchow, Will, Inclusive Legal Positivism (1994).Google Scholar

⁷⁶ MacCormick, , supra note 65, at 23.Google Scholar

⁷⁷ MacCormick, Neil, Precedent as a Source of Law, in Sources of Law and Legislation: Proceedings of the 17th World Congress of Philosophy of Law and Social Philosophy, Bologna, June 16–21 1995, ARSP—Beiheft 177, 183 (1998).Google Scholar

⁷⁸ Id. at 182.Google Scholar

⁷⁹ Id. at 182.Google Scholar

⁸⁰ Id. at 183.Google Scholar

⁸¹ Id. Google Scholar

⁸² Id. Google Scholar

⁸³ Dworkin, , supra note 10, at 95–96.Google Scholar

⁸⁴ See generally MacCormick, , supra note 55; MacCormick, supra note 65.Google Scholar

⁸⁵ MacCormick, , supra note 65, at vi.Google Scholar

⁸⁶ Id. at 98.Google Scholar

⁸⁷ Id. at 99.Google Scholar

⁸⁸ See e.g., Chaim Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation 31–35 (1969).Google Scholar

⁸⁹ Habermas, Jürgen, Teorías de la Verdad, in Teoría de la acción comunicativa: Complementos y estudios previos 113–58 (1997). For a comprehensive analysis of Habermas discourse theory in English, see generally Thomas McCarthy, The Critical Theory of Jürgen Habermas (1978).Google Scholar

⁹⁰ MacCormick, , supra note 65, at 30.Google Scholar

⁹¹ This obviously does not mean, however, that law and morality are not distinguishable. The fact that legal discourse operates within a set of institutional constraints implies that legal decisions are limited by the exigency to respect the statutes, precedents, and other authoritative materials found in a legal system. It is this constraint in practical legal reasoning that makes it a special case of practical general discourse.Google Scholar

⁹² MacCormick, , supra note 45, at 274.Google Scholar

⁹³ Id. at 275.Google Scholar

⁹⁴ Id. at 276.Google Scholar

⁹⁵ Habermas, , supra note 89.Google Scholar

⁹⁶ Id. at 171.Google Scholar

⁹⁷ Habermas, Jürgen, 1 The Theory of Communicative Action: Reason and the Rationalization of Society 9 (1984).Google Scholar

⁹⁸ Habermas, , supra note 89, at 130.Google Scholar

⁹⁹ Habermas, , supra note 97, at 9.Google Scholar

¹⁰⁰ Id. at 10.Google Scholar

¹⁰¹ Id. at 15–16.Google Scholar

¹⁰² Id. at 19.Google Scholar

¹⁰³ Id. at 25.Google Scholar

¹⁰⁴ Id. at 25.Google Scholar

¹⁰⁵ Alexy, Robert, Law and Correctness, 51 Current Legal Problems 205, 208 (1998).Google Scholar

¹⁰⁶ Alexy, Robert, Derecho y Moral, in La institucionalización de la justicia 21 (2005).Google Scholar

¹⁰⁷ Alexy, , supra note 105, at 210.Google Scholar

¹⁰⁸ See generally Alexy, , supra note 10.Google Scholar

¹⁰⁹ Alexy, , supra note 105, at 216.Google Scholar

¹¹⁰ Alexy, Robert, On the Necessary Connection between Law and Morality: Bulygin's Critique, 13 Ratio Juris 138, 146 (2000).Google Scholar

¹¹¹ See generally Alexy, , supra note 105.Google Scholar

¹¹² MacCormick, , supra note 45, at 257.Google Scholar

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¹¹⁴ Viehweg, Theodor, Topik und Jurisprudenz (1953).Google Scholar

¹¹⁵ If we accept this argument, we will have to deal with new problems such as, for instance, that of the potential conflict between “positive” arguments in a strict sense and the principles of justice that can be vindicated by means of the rules of general practical discourse. Neither MacCormick nor Alexy accept that there is always a primacy of strictly positive reasons in such case. Nonetheless, I do not need to deal with this kind of problems here.Google Scholar

¹¹⁶ See generally Bankowski, Zenon, Bringing the Outside in the Ethical Life of Legal Institutions, in Law and Legal Cultures in the 21^ST Century (Tomasz Gizbert-Studnicki & Jerzy Stelmach eds., 2007).Google Scholar

¹¹⁷ For some examples of positivists trying to read Neil MacCormick as belonging to their camp of theoretical discussion see, e.g., Frederick Schauer, Positivism as Pariah, in The Autonomy of Law: Essays of Legal Positivism 32–56 (Robert George ed., 1996); Villa, Vittorio, Neil MacCormick's Legal Positivism in Law as Institutional Normative Order 44–64 (Makysimilian Del Mar & Zenon Bankowski eds., 2009); Waluchow, , supra note 75, at 1–4.Google Scholar

¹¹⁸ MacCormick, Neil, Norms, Institutions and Institutional Facts, 17 Law and Philosophy 301, 305 (1998).Google Scholar

¹¹⁹ See generally Searle, John, Speech Acts—An Essay in the Philosophy of Language (1970).Google Scholar

¹²⁰ MacCormick, , supra note 118, at 305.Google Scholar

¹²¹ Nevertheless, MacCormick criticizes Dworkin's claim to reconcile his legal constructivism with the moral thesis (which is difficult to reconcile with constructivism) that there is only one correct answer for each and every legal problem. As MacCormick argues, there is an ambiguity in the heart of the Ronald Dworkin's, legal theory. Neil MacCormick, Dworkin as Pre-Benthamite, 87 Phil. Rev. 585–607, (1978).Google Scholar

¹²² Bankowski, , supra note 116, at 198.Google Scholar

¹²³ See generally Günther, Klaus, The Sense of Appropriateness—Application Discourses in Morality and in Law (1993); MacCormick, , supra note 65.Google Scholar

¹²⁴ Bankowski, , supra note 116, at 202.Google Scholar

¹²⁵ Id. at 199.Google Scholar

¹²⁶ Id. Google Scholar

¹²⁷ MacCormick, , supra note 45, at 278.Google Scholar

¹²⁸ Jeremy Waldron, for instance, agrees with Neil MacCormick that legal philosophy cannot be understood apart from its connections to the rule of law and its intrinsic relations to rationality and argumentation. As he wrote in a recent essay, “a philosophy of law is impoverished as a general theory if it pays no attention to the formalized procedural aspects of courts and hearings or to more elementary features of natural justice like offering both sides an opportunity to be heard.” Jeremy Waldron, The Concept and the Rule of Law 43 Ga. L. Rev. 1, 55–56 (2009). A legal philosophy that fails to capture the arguable aspect of law (as well as its implications for the idea of the rule of law) is depicted as “empty and irrelevant.” Id. at 56. Hence, Waldron expressly relies on MacCormick to hold that law is indeed an argumentative discipline and that modern positivism is guilty of the “fallacy” of putting its emphasis exclusively on the “command-and-control aspect of law.” Id. Whether or not normative positivists such as Waldron will remain positivist once they accept this new paradigm that MacCormick is advocating, one thing is sure: Even if positivism endures, it needs to be radically modified if its upholders manage to provide a reasonable answer to the problems that MacCormick is bringing to the front with his post-positivism.Google Scholar