The Master Rule, Normativity, and the Institutional Theory of Law

Abstract

This chapter focuses on MacCormick’s contributions to legal theory on what concerns the identity and validity of legal systems, and, in particular, MacCormick’s master rule. While the Scottish professor started by building upon Hart’s characterisation of the distinction between primary and secondary norms as the key to jurisprudence, he was to engage in a long-term critical re-consideration of the problem. Moved by the inadequacy of the rule of recognition to serve as the basis of a plausible recognition of the legal order of constitutional states, especially of the open, co-operative and pluralistic European Rechtsstaat (of the post World War II period), and influenced by his reading of Kelsen’s views on the matter, MacCormick came to affirm that the identity and validity of the legal system is based upon a master rule, which is defined by reference to a more inclusive (more democratic) social practice, wherein citizens are considered relevant as norm-users, and not only judges as norm-givers. Bertea finds that, while the institutional theory of law in general, and the master rule in particular, have made major contributions to our understanding of law, the master rule fails to provide a complete and sufficient account of the normativity of law. As long as the master rule is conventional, as Hart’s rule of recognition is (and thus not hypothetical as Kelsen’s fundamental norm is), its capacity to account for the normativity of law is conditioned on the finding of a proper explanation of how such a convention can become normative, how the is becomes an ought, without indulging in the naturalistic fallacy. Bertea considers the three main characterisations of legal conventionalism in the literature (legal conventions as indicators of acceptance, as co-ordination conventions, and as constitutive conventions) and finds that all three are inadequate.