AN INSTITUTIONAL THEORY OF LAW

AN INSTITUTIONAL THEORY OF LAW

LAW AND PHILOSOPHY LIBRARY Managing Editors: ALAN MABE, Department of Philosophy, Florida State University, Tallahassee, FL 32306, u.s.a. MICHAEL BAYLES, Department of Philosophy, University of Florida, Gainesville, FL 32611, u.s.a. Editorial Advisory Board: GEORGE FLETCHER, School of Law, Columbia University HYMAN GROSS, Corpus Christi College, Cambridge University WERNER KRAWIETZ, Lehrstuhlfiir Rechtssoziologie, Rechts- und Sozialphilosophie, Westfalische Wilhelms-Universitat, Munster ROBERT SUMMERS, School of Law, Cornell University ALICE ERH-SOON TAY, Faculty of Law, University of Sydney GEORG HENRIK VON WRIGHT, DepartmentojPhilosophy, University of Helsinki

NEIL MacCORMICK The University of Edinburgh, Faculty of Law, Edinburgh, u.k. and OT A WEINBERGER Institut for Rechtsphilosophie, Karl-Franzens-Universitiit, Graz, Austria AN INSTITUTIONAL THEORY OF LAW New Approaches to Legal Positivism Springer-Science+Business Media, B.V.

Library of Congress Cataloging-in-Publication Data MacCormick, Neil. An institutional theory of law. (Law and philosophy library) Translation of: Grundlagen des institutionalistischen Rechts positivism. Includes Indexes. 1. Legal positivism. 2. Law ~ Philosophy. 3. Jurisprudence. I. Weinberger, Ota. II. Title. III. Series. K331.M3313 1985 340'.1 85-28275 ISBN 978-90-481-8419-4 ISBN 978-94-015-7727-4 (ebook) DOI 10.1007/978-94-015-7727-4 German texts translated by Ruth Adler and Neil MacCormick All Rights Reserved Springer Science+Business Media Dordrecht 1986 Originally published by D. Reidel Publishing Company, Dordrecht, Holland in 1986. Softcover reprint of the hardcover 1st edition 1986 and copyrightholders as specified on appropriate pages within No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner

TABLE OF CONTENTS EDITORIAL PREFACE FOREWORD ACKNOWLEDGMENTS IX ri riii INTRODUCTION (Neil MacCormick and ala Weinberger) 1 1. The Disputes of the Schools 1 2. The Aim of the Institutional Theory 6 3. The Ontological Proposals of the Institutional Theory 9 4. The Real Existence of Norms 13 5. On Legal Structures and Legal Analysis 17 6. On Searle's Theory ofinstitutional Facts 21 7. On Hauriou's Institutional Theory 24 8. Conclusion 27 Notes 27 CHAPTER I / THE NORM AS THOUGHT AND AS REALITY (0. Weinberger) 31 Introduction 31 1. The Basis for and the Aim of Elucidating the Ontological Status of Norms 32 2. Norms as Ideal Entities 33 3. The Special Nature of Norms as Thought-Objects 35 4. The Norm as Reality 37 5. The Legal Order in the Perspective of Thought and of Reality 41 6. The Character of Legal Science 44 7. The Logic of Norms as Auxiliary Science to the Legal Sciences 46 Notes 47

vi TABLE OF CONTENTS CHAPTER II / LA W AS INSTITUTIONAL FACT (N MacCormick) 49 1. Institutional Facts and Legal Institutions 2. Legal Institutions and the Structure of Legal Systems 3. Transcending Institutional Facts Notes CHAPTER III / FACTS AND FACT-DESCRIPTIONS: A LOGICAL AND METHODOLOGICAL REFLECTION ON A BASIC PROBLEM FOR THE SOCIAL SCIENCES (0. Weinberger) 77 1. Stating the Problem 77 2. Brute Facts and Descriptions of Them 78 3. Humanly Conditioned Facts and Descriptions of Them 82 4. A Typology of Practical Sentences and Concepts 84 5. Consequences for a Basic Methodological Conception of the Social Sciences 90 Notes 91 CHAPTER IV / ON ANALYTICAL JURISPRUDENCE (N MacCormick) 93 Introduction 93 1. The Problem of Legal Knowledge 95 2. Legal Facts as Institutional Facts 97 3. The Problematic Character of Brute Facts 101 4. The Need for a Hermeneutic Method 102 Notes 107 CHAPTER V / BEYOND POSITIVISM AND NATURAL LA W (0. Weinberger) 111 O. The Problem and the Challenge 111 1. The Law as Institutional Fact and the Foundation of the Legal-Scientific Method 113 2. Critical Observations Concerning the Conception of Legal Positivism 115 3. Arguments for Natural Law Theories 119 4. Does One Need the Idea of Natural Law for a Material Justification of Law? 122 49 58 67 75

TABLE OF CONTENTS V1l 5. The Role of the Analytical Approach to Legal Theory in Settling the Dispute between Positivists and Natural Law Theorists 124 Notes 125 CHAPTER VI I LAW, MORALITY AND POSITIVISM (N. MacCormick) 127 1. A Kind of Legal Positivism 127 2. Legal Rules and the Internal Point of View 130 3. The Hermeneutic Approach to Legal Theory 134 4. The Convergence of Positivism and Natural Law 139 No~s 142 CHAPTER VII I THE ANAL YTICO-DIALECTICAL THEORY OF JUSTICE (0. Weinberger) 145 1. Theorising about Justice: the Present State of Play 146 2. Principles of Justice as Determinants of Conduct 153 3. The Non-Cognitive Character of Practical Reasoning 154 4. Structural Theories of Practical Thought 156 5. The Function of Aims, Norms and Values 157 6. Claims of Justice in the Context of Decision-Making 159 7. Justice in Ethics, Jurisprudence and Political Theory 160 8. The Character of Reasoning about Justice as seen from the N on-cognitivist point of view 161 9. Rational Methods of Substantive Practical Reasoning 163 10. The Dialectical Character of Practical Reasoning 167 Notes 169 CHAPTER VIII I INSTITUTIONAL MORALITY AND THE CONSTITUTION (N. MacCormick) 171 Introduction 171 1. Positivism and the Problem of Mistakes 171 2. The Theory of Institutional Morality 173 3. Institutional Morality and British Constitutional Theory 174 4. Positivistic Presuppositions of Institutional Morality 179 5. Practical Reason and Constitutional Custom 183 Notes 186

Vlll TABLE OF CONTENTS CHAPTER IX / THE LIMITS OF RATIONALITY IN LEGAL REASONING (N. MacCormick) 189 Introduction 189 1. Observations on Practical Rationality 190 2. Legal Reasoning and the Limits of Rationality 201 Notes 205 CHAPTER X / THE CONDITIO HUMANA AND THE IDEAL OF JUSTICE (0. Weinberger) 207 1. Why Theories ofjustice? 207 2. The Anthropological Approach to the Problem of Justice 209 3. Ideals of Justice as Determinants of Actions 210 4. The Analytico-dialectical Character of Deliberations on Justice 212 5. Formal Postulates ofjustice 213 6. Natural Law or Convictions of Justice? 216 7. Postulates of Just Application of the Law 217 8. Fair Equilibrium of Role Performances as a Principle of Justice 217 9. Collective Action 219 10. Present Aspects of the Problems of Justice 219 Notes 221 INDEX OF NAMES 223 INDEX OF SUBJECTS 225

EDITORIAL PREFACE During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from both the Anglo-American and European traditions. Not only does it help make some of the best work available to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowned scholars. Legal philosophy should not be considered a narrowly circumscribed field. Insights into law and legal institutions can come from diverse disciplines on a wide range of topics. Among the relevant disciplines or perspectives contributing to legal philosophy, besides law and philosophy, are anthropology, economics, political science, and sociology. Among the topics included in legal philosophy are theories of law; the concepts of law and legal institutions; legal reasoning and adjudication; epistemological issues of evidence and procedure; law and justice, economics, politics, or morality; legal ethics; and theories of legal fields such as criminal law, contracts, and property. ALAN MABE MICHAEL BAYLES ix

FOREWORD There are two reasons for our decision to publish the present set of essays as a joint book. The first is the extensive convergence in the jurisprudential ideas we have developed. The second is our wish to expose to critical discussion by others in the field a common theoretical approach which we hope will win recognition as a distinctive theory of law and one ripe for further development. In the history of science it has happened quite often that the same idea has been worked out around the same time by different researchers working quite independently of one another. The most celebrated example of this is no doubt the independent discoveries by Leibniz and by Newton of the infinitesimal calculus. The sociology of knowledge suggests that there is a variety of conditions which can make such convergence more or less probable. Developments in general culture and in the stock of common ideas shape at particular times the possibility of arriving at particular new ideas. The contemporary state of an art - its 'problem situation' - generates certain problems and sets the stage for formulating particular hypotheses or framing particular theories. Finally, similarities in the formative experience of scholars and in their cultural background often create conditions for the authorship of similar theses by different hands. In our case, in the development of what we call 'Institutional Legal Positivism', our conclusions were reached in entire mutual independence - neither were we personally acquainted, nor had either of us seen the other's work. The legal circles in which we received our academic training did not overlap at all, and we had different teachers both in jurisprudence and in philosophy. Yet the spirit in which we were both trained was that of an analytical or structure-theoretical approach to jurisprudence, and in matters of legal theory we both had a duality of interests ranging over sociological and political as well as logical and methodological issues. It was the same jurisprudential 'problem situation' that we both confronted, and the same questions to which we both sought answers, finding no fully satisfying answers to them in any of the then current juristic doctrines. Neither in pure normative theory nor in Neil MacCormick and Dta Weinberger, An Institutional Theory of Law, xi-xii. 1986 by D. Reidel Publishing Company. Xl

xii FOREWORD legal realism nor in any of the various sociological theories of law was there a fully satisfactory explanation of the nature and existence of law. Obviously, then, our inquiries had a common foundation. Yet our lines of approach and the views we took of our intellectual enterprise were not the same. MacCormick's inquiries were into basic questions of analytical jurisprudence, the logical structure of legal reasoning and the legal relevance of ordinary language philosophy, while Weinberger's particular concerns were with the philosophical and semantic foundations of the logic of norms, alongside of a concern with structuretheoretical problems of law and of processes of legal change. It was all the more a matter of surprise and pleasure that we could discern such considerable similarity in our conclusions. The special pleasure of this was because we saw a genuine corroboration of our views in the fact that we had arrived at like results by different routes. The question of priority seems to us of no importance. Anyway, we both think that neither of us can claim it or rather that the question is not strictly answerable. If MacCormick was the first to put forward a proposal explicitly for an 'institutional' version of legal positivism in his Inaugural Lecture 'Law as Institutional Fact' (1973), yet Weinberger had already expressed essentially the same idea in his essay 'The Norm as Thought and as Reality' (1969) and arrived later, still unaware of MacCormick's work, at exactly the same terminology - in the essay 'Facts and Fact-Descriptions' (1979). The papers printed here are intended to map our route into institutionalist legal positivism, to set out its principal tenets, and to indicate the broader programme implicit in it. After the (previously unpublished) general introduction follows a chronological sequence of essays in order of first publication. In their re-publication, they have been amended and improved in various minor matters of style and of substance. Ruth Adler, together with Neil MacCormick, undertook the translation of Weinberger's essays from the German. The Austrian Fund for Promotion of Scientific Research met the costs of translation, and we are most grateful to it and to Dr Adler. We also thank Mrs Valerie Chuter and Mrs Sheila Macmillan for their secretarial assistance in preparing the manuscript for publication. Finally, to the original publishers of the essays here re-published, we owe and give warm thanks for their permission for re-publication. Edinburgh and Graz, 1985 D. NEIL MacCORMICK OTA WEINBERGER

ACKNOWLEDGEMENTS The authors acknowledge gratefully the permission given by the publishers and editors of relevant journals and symposia for their republication in the present revised version. Original publication was as follows: Essays by Weinberger: I. 'Die Norm als Gedanke und Realitat', Osterreichische Zeitschrift for Offentliches Recht 20 (1970), pp. 203-216. III. Tatsachen und Tatsachenbeschreibungen: Eine logischmethodologische Uberlegung zu einem Grundlagenproblem der Sozialwissenschaft', in K. Salamun (ed.), Sozialphilosophie undaufkliirung(tiibingen, 1979), pp. 173-187. V. 'Jenseits von Positivismus und Naturrecht', Archiv for Rechts- und Sozialphilosophie, Supplementa (1982), ed. by Paul Trappe, Vol. I, Part 1, pp. 43-56. VII. 'Analytisch-Dialektische Gerechtigkeitstheorie. Skizze einer Handlungstheoretischen und non-kognitivistischen Gerechtigkeitslehre', in I. Tammelo and A. Aarnio (eds), Zum Fortschritt von Theorie und Technik in Recht und Ethik, Rechtstheorie (Beiheft 3,1981), pp. 307-330. X. 'Die Conditio Humana und das Ideal der Gerechtigkeit', in Proceedings of the IVR 11th World Congress on Philosophy of Law and Social Philosophy, which will appear as a Beiheft to the journal Rechtstheorie for 1985. Essays by MacCormick: II. 'Law as Institutional Fact', Law Quarterly Review 90 (1974), pp. 102-129; London, Stevens and Sons Ltd.; also, Inaugural Lecture Number 52 (1973), the University of Edinburgh. IV. 'On Analytical Jurisprudence', A.R.S.P. Supplementa (1982), ed. by Paul Trappe, Vol. I, Part 1, pp. 29-41; revised text also in Saskatchewan Law Review (1985). VI. 'Law, Morality and Positivism', Legal Studies 1 (1982), pp. 131-145; London, Butterworth and Co. Ltd. Neil MacCormick and Ola Weinberger, An Institutional Theory of Law, xiii-xiv. 1986 by D. Reidel Publishing Company. xiii

xiv VIII. IX. ACKNOWLEDGEMENTS 'Jurisprudence and the Constitution', Current Legal Problems 36 (1983), pp. 13-30; London, Stevens and Sons Ltd. 'The Limits of Rationality in Legal Reasoning', in Proceedings of the IVR 11 th World Congress on Philosophy of Law and Social Philosophy which will appear as a Beiheft to the journal Rechtstheorie for 1985. (Published by Verlag Duncker & Humblot, West Berlin.) The German edition of this book was published by Verlag Duncker & Humblot, West Berlin, in 1985 under the title Grundlagen des Institutionalistischen Rechtspositivismus.The text of the German edition was substantially the same as the present one, save that the Introduction (by Weinberger, with a short postscript by MacCormick), although the basis for the joint Introduction to the present edition, was somewhat different in content.