Neil MacCormick's Legal Theory of Post-Positivism
Date Issued
2016
Date
2016
Author(s)
Wu, Yun-Chung
Abstract
In the last few decades Neil MacCormick has been one of the leading figures in contemporary analytical legal positivism. While there has been a wealth of review on his institutional legal positivism in the early stage, study on his legal theory of self-labelled “post-positivism” in the late stage can scarcely be found. In particular, though he has been treated as a torch-bearer of Hartian tradition, his post-positivistic conception of law “law as institutional normative order” surprisingly present the necessary connection between law and morality, which by no means fits the label of legal positivism. In so doing the tension between legal positivism and natural law theory underlies in his arguments of “post-positivism”. The present paper investigates the trajectory of his thought, and seeks to maintain the significance of “post-positivism” in terms of jurisprudence. In short, the present paper examines if “post-positivism” is promising in the contemporary debate of jurisprudence. By means of textual analysis, the present paper has probed into his practical philosophy, developed a proper interpretation of “post-positivism”, which enables to show how he justifies his thesis. In conclusion, the central tenet of “post-positivism” holds because the term “post-” not only shows the affirmation of the norm-using capacity, which make institutionalization possible, but also shows that the very capacity in the sense of moral autonomy and self-control can be maintained and flourished in the context of civility which positive law can bring about. It follows that law as institutional normative order must be grounded in the aspirational value of legality, namely the communal value of moral autonomy.
Subjects
Neil MacCormick
Post-Positivism
The Institutional Theory of Law
Law as Institutional Normative Order
Practical Reason
Rule of Law
Justice
Civil Society
Type
thesis
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