Beyond Kelsen and Hart? MacCormick's Institutions of Law
| Published date | 01 September 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00717.x |
| Author | Déirdre Dwyer |
| Date | 01 September 2008 |
REVIEWARTICLE
Beyond Kelsen and Hart? MacCormick’s Institutions of Law
De
Łirdre Dwyer
n
NeilMacCormick, Institut ions of Law,Oxford: Oxford University Press, 20 07, 305 pp,
pb d19.9 9.
INTRODUCTION
In 1972, and just turned thirty, Neil MacCormick vacated his fellowship at Balliol Col-
lege, Oxford, to return to Scotland to take up the Regius Professorship in Public Law
and the Law of Nature and Nations at the University of Edinburgh (and thus
coincidentally making it possible for Joseph Raz to return from Jerusalem to take up
a tutorial fellowship back in Oxford). Following his inaugural lecture on ‘Law as
Institutional Fact’,
1
building on the work of the philosophers G.E.M. Anscombe and
John Searle,
2
MacCormick has developed his institutional theory of law over the
last thirty ¢ve years.
3
The Institutions of Law (hereafter ‘Institutions’) is MacCormick’s
de¢nitive statement of that theory. It is also the third book in a quartet, resulting from
a Leverhulme Research Professorship, on a programme entitled ‘Law, State, and
Practical Reason’.
4
The ¢rst two titles concern the concept of sovereignty and the
nature of legal reasoning,
5
and the fourth will examine practical reason ing in morality
and law. Although Institutions is the third book in the series, it deals with a subject that is
logically prior to the other volumes, and so should perhaps be read ¢rst.
The book is divided into four parts. Part1, on ‘Norm, Institution and Order’
presents the theoretical foundations of law as an institutional normative order, in
four chapters. Part 2 concerns ‘Persons, Acts and Relationships’. Part 3 discusses
the relationship between ‘Law, State and Civil Society’. Part 4 concerns ‘Law,
Morality and Methodology’. In his Preface, MacCormick makes a bold claim:
n
British AcademyPostdoctoral Fellow, Faculty of Law, University of Oxford.
1 N.MacCormick,‘Law as Institutional Fact’ (1974)90 LQR 102.
2 G. Anscombe,‘OnBrute Facts’ (1958)18 Analysis 69;J.Searle,Speech Act s (Cambridge:Cambridge
University Press,1969).
3 N. MacCormick,‘On‘‘PublicLaw and the Lawof Nature and Nations’’’,Tercentenary Lecture in
the University of Edinburgh,18 January 2007, at http://www.law.ed.ac.uk/¢le_download/series/
14_tercentenarylecturepubliclawandthelawofnatureandnations.pdf (last visited 3 July 2008).
4ibid,12.
5 N. MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth
(Oxford: Oxford University Press, 2002);N. MacCormick, Rhetoricand the Rule of Law: aTheory
of Legal Reasoni ng (Oxford:Oxford University Press, 2005).
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(5) MLR 823^839
Two great thinkers dominated legal theory in the twentiethcentury. Hans Kelsena ndH.
L. A.Hart . . . But neither,for all his genius, fully succeeded in the attempt.Their place in
history is unchallengeable, but forthe present and forthe futurefreshworkremainsto be
done . . . If this book succeeds in the task I set for myselfin writing it, it will substantially
enhance its readers’understanding of law. . . My task so described is a daunting one.
6
Lest there beroom for ambiguity,the book’s publisher promises us that Institutions
‘attempts to ful¢l the need for a twenty-¢rst century introduction to legal theory
marking a fresh start such as was achieved by H.L.A. Hart’sThe Concept of Law’.
7
I assess here some of the central aspects of MacCormick’s thesis: his explanatory
de¢nition of law as ‘institutional normative order’, his argument for why legal
norms bind, his attempt to combine an interpretive approach with an analytical
one,
8
and his analysis of whether unjust laws are valid, and of the relationship
between law and morality.
MACCORMICK’S EXPLANATORY DEFINITION OF LAW
The book’s title, Institutions of Law, echoes that of two earlier works, the1681Insti-
tutions of the Law of Scotland by James,Viscount Stair,and the 1872 Instit utes of Law by
JamesLorimer, one of MacCormick’s predecessors as Regius Professor.But while
Stair’s Instit utions and Lorimer’s Institutes echoed the Institutiones (textbooks) of
Gaius in the second centuryand Justinian in the sixth, MacCormick is principally
making use of other meanings of derivatives of ‘to institute’ (‘to set up, establish,
found, ordain’
9
). First, we are dealing with‘institutional’ facts, part of the social
reality. Secondly, an important element in the law of a contemporary state is
formed by ‘institutions’ such as contract, property and marriage. Thirdly, law is
‘institutional’ in the sense of being administered by institutions such as courts,
legislatures, public prosecution agencies and the police. Law is something that
has been set up orarranged in a formal manner. Itis therefore somethingthat both
creates and engages with institutions. It is also an institutional creature in its own
right, as an institutional normative order.
10
However, to tal k of an ‘institutional
theory of law’, as MacCormick does in places, is surely hypallage, since it is not
the nature ofthe theory itself that is institutional, but rather its subject.
MacCormick builds his book on an ‘explanatory de¢nition’, that Law is ‘insti-
tutional normative order.’ Chapter 1,‘On Normative Order’, introducesus to insti-
tutional facts, normative order and conventions.
11
The concept of ‘institutional
facts’was developed byAnscombe, to complement the concept of ‘brute facts’.
12
Institutional facts are omnipresent and inherent elements of social reality. Part of
6Institutions, v^vi.
7 http://www.oup.com/uk/catalogue/?ci=9780198267911 (last visited 3 July 2008).
8egInstitutions,7.
9 J. Simpson and E.Weiner (eds.) The OxfordEnglish Dictionary (Oxford: Oxford University Press,
2nd ed,1989).
10 See also Rhetoric, n 5 above,2^7.
11 Chaps. 1and 2 were previously published as N. MacCormick,‘Norms, Institutions and Institu-
tional Facts’(1998) 17 Law and Philosophy1.
12 n 2 above .
Beyond Kelsen and Hart? MacCormick’s Institutions of Law
824 r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(5)MLR 823^839
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