MacCormick’s Latest Views of Legal Reasoning and the Positivist Concept of Law

Abstract

Here, I will address a particular aspect of MacCormick’s revised theory of legal reasoning, namely, the way his latest views on legal argumentation carry implications for the concept of law. I will compare these views against those set out in his earlier Legal Reasoning and Legal Theory, arguing that the recent revision of this theory in Rhetoric and the Rule of Law conceptualises the law in a non-positivist fashion. Thus, I will first present the main features of MacCormick’s revised theory of legal reasoning, clarifying its nature and scope and showing that this revised theory makes legal reasoning a constitutive element of the concept of law. I will then argue that this conceptual link found to exist between legal reasoning and law is rich in theoretical implications not only for the study of legal argumentation (legal methodology) but also for our way of conceptualising the law (legal ontology). Now, in making legal reasoning constitutive of the concept of law, the revised theory embraces a foundational element of non-positivism, and that is the burden of my argument. Once we have established that fact, we will abandon the traditional image of MacCormick as the torchbearer of legal positivism and come to view him instead as the missing link between Herbert Hart’s legal positivism and Ronald Dworkin’s non-positivist research programme.