On MacCormick's Post-Positivism: Comment on Karen Petroski's ‘Is Post-Positivism Possible?’

Abstract

In the essay entitled “Is Post-Positivism Possible?”, Karen Petroski argues two theses: (1) There are certain institutional conditions in the “modern setting of scholarly activity” that make positivism the inevitable (or nearly inevitable) form of theoretical thinking about the law; and (2) There is nothing in Neil MacCormick’s post-positivism that should lead us to believe that his legal theory is qualitatively different from positivism. In this paper I intend to reply to those two thesis and to explain why I think that MacCormick’s post-positivistic legal theory can easily resist its critics and opens up new directions for legal theoretical inquiry. In my opinion, MacCormick’s institutional theory of is inevitably connected with his theory of legal argumentation, as opposed to the positivistic viewpoint that strictly separates theories of law from theories of adjudication. This connection, it is argued, is very important because it explains why moral and political arguments necessarily play a part in legal discourse.