Legality as Relative Institutionalisation: MacCormick's Diffusionism and Transnational Legal Theory

Abstract

This paper offers a reconstruction of the late Neil MacCormick's institutional theory of law in light of his commitment to the diffusion of power. The paper argues that insofar as we are considering MacCormick's legacy for transnational legal theory, it is best to marginalise what some have termed his ‘transition’ from radical pluralism to pluralism under international law. From the perspective of his commitment to the diffusion of power, the papers in which MacCormick discusses those issues are seen to have more in common, ie they both attempt to create and sustain a theoretical space in which the relationship between Member State and European institutions is a horizontal one (and thus one in which neither side can be said to be supreme so as to make the other subordinate). MacCormick's commitment to the diffusion of power is here linked with the nourishment he drew from the thinkers of the Scottish Enlightenment, and especially David Hume. Finally, his institutional theory of law is reconstructed as an account of ‘legality as relative institutionalisation’, this being an account that, inter alia: (1) treats legality as an emergent phenomenon (and is thus able to capture the inchoate and emerging forms of legality that arguably characterise the transnational); and (2) keeps track of the experience of ordinary persons, which not only respects the difficulty in distinguishing between ordinary persons and officials in the realm of the transnational, but also enables scrutiny of the gap between decision-making and those it most affects.