Neil MacCormick’s Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

This paper offers a diachronic reconstruction of MacCormick’s theory of law and of legal argumentation; in particular, two connected points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick’s gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. In brief, MacCormick uses the argument of the implicit pretension to justice of law against the thesis of the separability between law and morality and, accordingly, against legal positivism. This argument misses the target. The fact is that it merely individuates a link between the existence of law and law’s pretension to be morally correct; this argument says nothing about the actual moral correctness of the law, and this considerably weakens its scope. The second point concerns MacCormick’s acceptance of the one right answer thesis and the consequent thinning of the differences between MacCormick’s theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. My point is that the thesis of the one right answer (with its anti-positivist implications) is irrelevant for legal reasoning and a cause of confusion.