Abstract
This chapter explores the claim that MacCormick’s theory is of special interest to social scientists, because he is one of the rare contemporary legal scholars who was keenly interested in exploring the limits of law as a means of social integration, and law’s relationship to other normative orders. Neil’s historical sensibility makes of his work a reminder both of the fundamental relevance of the de-limitation of the province of law and of the fact that the difference between law and other normative orders is one of degree, rather than absolutes. Blichner’s contribution to the theory of juridification and de-juridification (and their multi-faceted character and interaction) is an apt means to highlight, re-construct and even complete some of MacCormick’s basic insights on what concerns the relationship between normative orders, institutional normative orders, and legal orders. Blichner’s key message is that processes of juridification and de-juridification should no longer be regarded as “borderline”, “marginal” questions which legal theory can blissfully ignore; they should be analysed as determining factors of the social tasks that law can perform effectively.
Law is institutional normative order.
Neil MacCormick 1
Human beings are norm-users, whose interactions with each other depend on mutually recognizable patterns that can be articulated in terms of right versus wrong conduct, or what one ought to do in a certain setting. Understanding this use of norms precedes understanding any possibility of deliberately creating relevant norms that are to become patterns of behaviour.
Yet, deliberate creation of norms also occurs. Norm usage can acquire a more formal character, indeed, can become ‘institutionalized’. To understand this is to understand the transition into institutional normative order, and thus law.
Neil MacCormick 2
Law as institutional normative order thus comes to be a complex and systematic whole.
Neil MacCormick 3
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Neil MacCormick, Institutions of Law, An Essay on Legal Theory (Oxford: Oxford University Press, 2007), hereafter IoL, p. 1.
- 2.
Ibid., p. 20.
- 3.
Ibid., p. 304.
- 4.
IoL, Chapters 1 & 2.
- 5.
L.C. Blichner and A. Molander, “Mapping Juridification” (2008) 14 European Law Journal, pp. 36–54.
- 6.
See J. Elster, “A Plea for Mechanisms”, in: P. Hedstrøm and R. Swedberg (eds), Social Mechanisms: An Analytical Approach to Social Theory (Cambridge: Cambridge University Press, 1998), pp. 43–75; and idem, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (Cambridge: Cambridge University Press, 2007), especially p. 32.
- 7.
These again loosely build on four more basic criteria of law: 1. Law should be able to guide human conduct. 2. A claim to correctness in the weak sense that every decision made by the legal system should be backed by reason. 3. The fulfilment of the basic rule of law criteria. 4. Law should be backed by morally acceptable reasons, meaning reasons that people in general may accept as moral even though they may not agree that these reasons should have any bearing on a given actionable conclusion.
- 8.
See L. L. Fuller, The Morality of Law (New Haven CT-London: Yale University Press, 1964).
- 9.
Basically, the more radical the interpretation, the stricter the demand that the rule of law situation should be improved, meaning that, after the interpretation, there should be less room for criticism based upon the rule of law than before. Based upon the premises that the rule of law is an essentially contested concept and that it is never fully satisfied, all we can ask is that the interpretation be reasonably defended with reference to the rule of law. Thus, the rule of law serves as a weak critical standard, in the sense that some interpretations are excluded, but more than one may be acceptable.
- 10.
See S. Wilks, “Markets and law: Competition policy and the juridification of the economic sphere”, Paper presented at the Society for the Advancement of Socio-Economics (SASE) Conference, George Washington University, Washington DC, 8 July 2004, on file with the author.
- 11.
IoL, p. 35.
- 12.
IoL, p. 20.
- 13.
Queuing as normative order is without any institutional guidance except from the norms of queuing past on from one individual to the next, and this is activated whenever a particular individual encounters another individual in a situation which, according to the norms, calls for queuing. Roughly speaking, this normative order becomes institutionalised when someone other than the queuing individuals imposes some form of order on the queue, be that in the form of a manager of the queue, the putting up of a fence or a machine giving out numbers. This institutional normative order can develop into a fairly complex set of rules and the need for interpretation of these rules. I will return to this in more detail.
- 14.
IoL, p. 245.
- 15.
This is close to Lon Fuller’s view that: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.” See Fuller, note 8 supra, p. 162.
- 16.
IoL, p. 304.
- 17.
It is even possible to see it as a continuum, where “norm-user” skill may be filled with ever more specified substantial content.
- 18.
IoL, pp. 216, 221 & 304.
- 19.
This is one particular type of institutionalisation relative to the many different concepts of institutionalisation currently existing in the social science literature.
- 20.
IoL, p. 260.
- 21.
Ibid.
- 22.
Ibid., note 22.
- 23.
In a democracy, most would contend that law is accepted because it is democratically made, but, in this case, the democratic element is not an intrinsic part of law, but only what makes law democratic. This is in contrast to MacCormick’s norm-user perspective, which can be seen to give law an intrinsic democratic quality, albeit a limited one.
- 24.
IoL, p. 18.
- 25.
Ibid., pp. 15 & 17.
- 26.
Ibid., pp. 16 & 18.
- 27.
Ibid., p. 17.
- 28.
Ibid., p. 18.
- 29.
Ibid., p. 14.
- 30.
This is similar to Dworkin’s distinction between concept and conception. People may have a common concept of queuing, for example “first come, first served”, but different conceptions of it. Ronald Dworkin, Law’s Empire (London: Fontana, 1986), p. 71.
- 31.
IoL, p. 18.
- 32.
Ibid., p. 15.
- 33.
MacCormick’s concept of institution contains both a normative and a practical element, in that it refers to a practice that is in some way “infused with value”, to paraphrase Philip Selznick (the phrase was coined in his Leadership in Administration (New York: Harper & Row, 1957), p. 17). A distinction is also made between formal and informal institutions, based upon the presence or not of stable explicit authoritative norms. Normative order is informal institutions and institutional normative orders are formal institutions. Finally, a distinction between institutions as organisations or not, is made. A court is an institution and an organisation governed by explicit norms. A contract, on the other hand, is not an organisation, but it is still an institution because it is governed by explicit and authoritative norms.
- 34.
IoL, p. 24.
- 35.
Ibid., p. 25.
- 36.
Ibid., p. 21.
- 37.
Ibid., p. 22.
- 38.
Ibid., p. 24.
- 39.
Ibid., p. 24.
- 40.
H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 202.
- 41.
Lon Fuller that argued that in order to call something law it at least have to conform to these criteria, what he called the inner morality of law, because it would be immoral to ask people to follow rules that would in effect be impossible to observe, whether these rules could themselves be considered moral or not. It is interesting to compare with Lon Fuller here since even he saw law as including a whole range of activities that normally is not called law, like the rules of a sports organisation.
- 42.
Ibid., p. 21.
- 43.
Ibid.
- 44.
Ibid., p. 22.
- 45.
Ibid.
- 46.
Ibid., p. 23.
- 47.
Ibid., p. 30.
- 48.
Ibid., p. 35.
- 49.
See S. D. Krasner, “Approaches to the State: Alternative Conceptions and Historical Dynamics” (1984) 16 Comparative Politics, pp. 223–246; and idem, “Sovereignty. An Institutional Perspective” (1988) 21 Comparative Political Studies, pp. 66–94.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2011 Springer Science+Business Media B.V.
About this chapter
Cite this chapter
Blichner, L.C. (2011). Juridification from Below: The Dynamics of MacCormick’s Institutional Theory of Law. In: Menéndez, A., Fossum, J. (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory. Law and Philosophy Library, vol 93. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8942-7_3
Download citation
DOI: https://doi.org/10.1007/978-90-481-8942-7_3
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-8941-0
Online ISBN: 978-90-481-8942-7
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)