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.
The paper is part of a 5-year project entitled “The Constitution of Globalization” that is funded by an Odysseus research grant of the Research Foundation-Flanders (FWO).
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Notes
- 1.
See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 1994 edition with a Postscript, pp. 100–110.
- 2.
This twofold role clearly expressed by A. Marmor, “How Law is like Chess” (2006) 12 Legal Theory, pp. 347–371, at 352, among others, who ascribes two functions to the basic norm: that of “answering the question of how we identify the law as such” and that of “answering the question of law’s normativity”.
- 3.
The distinction, then, is between reasons at large offered in support of what is demanded, and reinforced reasons – the ones a valid legal standard can bring into being – which carry extra weight with regard to countervailing reasons and are protected from at least some of the potentially outweighing factors.
- 4.
As J. Coleman, puts it, “the capacity of almost all legal rules to govern conduct depends on their bearing a certain relationship to another rule – the rule of recognition’, to the effect that ‘a philosophical account of the very possibility of governance by law… rests on the possibility of a philosophical account of how the rule of recognition can be a reason for action”.
- 5.
The institutional theory of law was first set out in its contemporary version in N. MacCormick and O. Weinberger, An Institutional Theory of Law (Dordrecht: Kluwer, 1986). Scholars who have contributed to the theory upon the basis of MacCormick & Weinberger’s pioneering studies are J. Bengoetxea, The Legal Reasoning of the European Court of Justice (Oxford, Oxford University Press, 1993), M. La Torre, Norme, Istituzioni, Valori (Rome: Laterza, 1999), and D. Ruiter, Institutional Legal Facts (Dordrecht, Kluwer, 1993); and idem, Legal Institutions (Dordrecht, Kluwer, 2001). The latest statement of MacCormick’s own version of the theory can be found in MacCormick, Institutions of Law (Oxford: Oxford University Press, 2007).
- 6.
N. MacCormick, Institutions of Law, note 5 supra, p. 13.
- 7.
N. MacCormick & O. Weinberger, An Institutional Theory of Law, note 5 supra, p. 9.
- 8.
Ibid., p. 10.
- 9.
N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), p. 6.
- 10.
MacCormick, note 5 supra, p. 20.
- 11.
On this point, see MacCormick, Institutions of Law, note 5 supra, pp. 33–34.
- 12.
See, especially, MacCormick, Institutions of Law, note 5 supra, pp. 14–24.
- 13.
By common normative opinion is meant the shared sense that the conduct being practiced is obligatory. A common normative opinion obtains whenever “people conduct themselves in relation to others on the basis of an opinion concerning the right thing to do which they suppose to be a mutual opinion” (MacCormick, 2007: 18), and so whenever each member within a social group “acts on the understanding (or the assumption, not necessarily particularly articulate) that each of the others is oriented towards more or less the same opinion concerning what everyone ought to do” (MacCormick, Institutions of Law, note 5 supra, p. 16).
- 14.
This construction is put forward in MacCormick, Institutions of Law, note 5 supra, pp. 14–20.
- 15.
This proposition is presented in MacCormick, Institutions of Law, note 5 supra, pp. 22–24, among other places.
- 16.
This view is framed most explicitly in MacCormick, H.L.A. Hart (Stanford CA: Stanford University Press, 1981), pp. 103–165; see MacCormick, Institutions of Law, note 5 supra, p. 60.
- 17.
(MacCormick, Institutions of Law, note 5 supra, p. 57). The full argument is stated in ibid., pp. 56–58.
- 18.
See, for instance, MacCormick, Institutions of Law, note 5 supra, pp. 16–18.
- 19.
Coleman, note 4 supra, p. 88.
- 20.
(Ibid., pp. 92–94). Although Coleman no longer supports this view, it remains the most developed and comprehensive explanation of the normativity of law from within the Hartian tradition of legal positivism, and, for this reason, it will be carefully discussed in this section.
- 21.
Ibid., p. 97.
- 22.
Ibid., p. 77.
- 23.
Although this theory goes beyond Hart’s original intent, it essentially remains faithful to Hart’s original non-cognitivism and expressivism. For H. L. A. Hart, “as the etymology of ‘duty’ and, indeed, ‘ought’ suggests”, obligations in law refer to “actions which are due from or owed by the subjects having the duty, in the sense that they may be properly demanded or exacted from them”; idem, Essays on Bentham (Oxford: Clarendon Press, 1982), p. 160, This is a position that Coleman also subscribes to, and subscribing to it means rejecting any cognitive analysis of obligation, or any analysis under which the existence of an obligation is linked to the existence of objective reasons to act as prescribed.
- 24.
For a full discussion of this limitation, see K. E. Himma, “Conceptual Jurisprudence and the Intelligibility of Law’s Claim to Obligate”, in: M. O’Rourke, J. Keim-Campbell & D Shier (eds), Topics in Contemporary Philosophy: Law and Social Justice (Cambridge MA: The MIT Press, 2005), pp. 311–326.
- 25.
MacCormick is well aware of this problem: he points out that acceptance cannot explain the obligations that citizens at large have under the law but can only explain the binding force the law has on officeholders, who would incur a pragmatic self-contradiction if they acted contrary to the basic norm requiring observance of the constitution and of the laws enacted under the constitution; idem, Institutions of Law, note 5 supra, pp. 51–52.
- 26.
See S. Delacroix, Legal Norms and Normativity (Oxford: Hart Publishing, 2006), pp. 174–183, for the argument in support of this view.
- 27.
Ibid., p. 174.
- 28.
An argument in support of this claim is offered as well by Gerald Postema. From the premise that “it is a defining feature of law that it channels social behaviour” – idem, “Co-ordination and Convention at the Foundations of Law” (1982) 11 Journal of Legal Studies, pp. 165–203, at p. 187 – and does so in a special way, that is, by guiding behaviour rather than by manipulating the psychological determinants of action – Postema argues that the law has a public nature which extends beyond the circle of public officials and involves everyone subject to the law: “law can direct action to its ends only if its rules are integrated into the practical reasoning of those subject to the rules”: Ibid., p. 190. Nor does it suffice to communicate legal standards, because (among other reasons) communication is an interactive process in which each participant’s ability to understand depends on the expectations and understanding of the others; so what also needs to happen with regard to these standards is that they must be perceived as binding by people at large. This makes the normativity of law an affair involving public officials and citizens alike, and it means that its normativity cannot be adequately explained without taking the citizens’ attitudes into account. If we agree that law is a means to guide conduct (and is not just coercive), then we should grant that a legal system is paradigmatically a system whose standards are not just the concern of officials, but also figure in the practical reasoning of all other citizens, too.
- 29.
See N. Smith, “The Law as a Social Practice: Are Shared Activities at the Foundations of Law?” (2006) 12 Legal Theory, pp. 265–292, at 278–85.
- 30.
As Smith notes, in modern legal institutions, legal officials are not just legislators and judges, they also include functionaries working in “many administrative agencies that have the authority to issue regulations that we have no reason not to take to be law”; idem, note 29 supra, p. 285.
- 31.
Among those who rely on the idea of a coordination convention as a key tool of legal interpretation are C. Gans, “The Normativity of Law and its Coordinative Function” (1981) 16 Israel Law Review, pp. 333–349 (1981), Postema, “Co-ordination and Convention at the Foundations of Law”, note 28 supra, E. Lagerspetz, The Opposite Mirrors (Dordrecht: Kluwer, 1995), and G. den Hartog, Mutual Expectations (Dordrecht: Kluwer, 2002).
- 32.
One such situation (where co-ordination comes into play) is the road, and the problem can be exemplified by way of our choosing to drive on the right side or the left side of the road: as much as we may each have a preference of our own for one or the other of these two choices, we recognise that it makes even more sense (it is more reasonable, rational, or fitting) to have an agreement that will make our overall driving experience smoother and safer than if we each made our choice independently of the other drivers (and of pedestrians).
- 33.
See den Hartog, Mutual Expectations, note 32 supra, pp. vii–ix.
- 34.
By co-operative disposition, den Hartog means the attitude of those who are “prepared to honour each other’s justified expectations”; ibid., note 32 supra, p. 20, and, by interdependent reasons, he means reasons that exist whenever “people intend to act in a certain way, only because they believe the others to intend to act in the same way as well”; ibid., note 32 supra, p. 6.
- 35.
As den Hartog puts it, “the underlying form of an obligatory norm… is this: I expect you to cooperate in the production of a common good, because I trust you and it would be untrustworthy or unfair to betray my trust”; idem, note 32 supra, p. 43 & pp. 32–37.
- 36.
Thus, for example, MacCormick claims that norms “emerge from practices based on mutual expectations and beliefs”; idem, Institutions of Law, note 5 supra, p. 23, and though he is referring here to informal norms, the claim also extends to formal ones – or at least this seems to be the sense of his overall argument; ibid., pp. 22–24; see, also, pp. 39–45.
- 37.
This critique can be found in A. Marmor, Positive Law and Objective Values (Oxford: Oxford University Press, 2001), pp. 1–24, among other places.
- 38.
This critique is developed in some detail in L. Green, “Positivism and Conventionalism” (1999) 22 Canadian Journal of Law and Jurisprudence, pp. 35–52.
- 39.
This point is well summarised by Coleman’s proposition that in so far as “coordination conventions are solutions to games in which the participants’ ex ante preferences have a specific structure, or are ordered in certain specific ways”, conceiving the rule of recognition as a co-ordination convention “would place an arbitrary and baseless constraint in our concept of law”; idem, The Practice of Principle, note 4 supra, p. 94.
- 40.
Marmor, “How Law is Like Chess”, note 2 supra, pp. 347–371, at 357.
- 41.
This aspect clearly emerges from den Hartog’s discussion: see, for example, idem, Mutual Expectations, note 31 supra, pp. 43–46.
- 42.
For a discussion of the non-positivist outcome entailed by an account of the normativity of law based upon the idea of a co-ordination convention, see den Hartog, Mutual Expectations, note 31 supra, pp. 154–213.
- 43.
Neil MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), p. 1.
- 44.
Ibid., p. 2.
- 45.
The same line of reasoning can be found in MacCormick’s assessment that “the institutional theory in its present form, though originally developed within the strand of thought known as ‘legal positivism’, is not now a ‘positivist’ theory. Whether or not anyone chooses to class it as belonging within the tradition of ‘natural law’, it is certainly post-positivistic”; idem, Institutions of Law, note 5 supra, p. 5.
- 46.
See Marmor, Positive Law and Objective Values, note 37 supra, pp. 1–24; idem, “How Law is Like Chess”, note 2 supra, pp. 353–363.
- 47.
See Marmor, “How Law is Like Chess”, note 2 supra, p. 368, for a paradigmatic statement to this effect.
- 48.
As Marmor puts it, constitutive conventions “have a dual function: they both determine what constitutes the practice, and prescribe modes of conduct within it”. It is the second function that bears directly on normativity, in that constitutive conventions are regarded as normative by virtue of their ability to prescribe certain modes of conduct; idem, “How Law is Like Chess”, note 2 supra, p. 350. See, also, idem, Positive Law and Objective Values, note 37 supra, pp. 29–30.
- 49.
This second characteristic is outlined in Marmor, Positive Law and Objective Values, note 37 supra, pp. 25–34.
- 50.
See MacCormick, Institutions of Law, note 5 supra, pp. 51–55 & 103–199.
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Bertea, S. (2011). The Master Rule, Normativity, and the 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_5
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