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Research on MacCormick’s Institutional Theory of Law

Author: ZhaoJianBing
Tutor: ChenLingHai
School: East China University of Political Science
Course: Legal Theory
Keywords: Institutional Theory of Law MacCormick Separability Thesis Social Fact Thesis
CLC: D909.1
Type: Master's thesis
Year: 2011
Downloads: 76
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Abstract


The Institutional Theory of Law is founded by the British jurist Neil MacCormick and the Austrian jurist Ota Weiberger. This paper will focus on the theory of N. MacCormick. The Institutional Theory of Law turned some moral principle to legal principle in the way of institutional moral, and connected normativity and reality of law. Both of the two ways were innovative. From the standpoint of the Separability Thesis as well as the Social Fact Thesis, this paper will show the background and the framework of the Institutional Theory of Law. Then the paper mentions the value of the Institutional Theory of Law. The theory is discussed as follows.The introduction declares the subject of this paper according to explaining the motivation of writing. Then the paper briefly introduces the basic situation of the Institutional Theory of Law and the current research status of domestic academic circles. At last, the target and the methods of this paper are opened up.The first part of this paper details the background of creating the Institutional Theory of Law. The Institutional Theory of Law was founded by no accident, which was inseparable with the academic debate and historical background of that time. The immediate cause of creating this theory was the contention between normativism and anti-normativism. The Institutional Theory of Law considered the law as an institutional fact, thereby connected the normativity and reality of law. But if we study more deeply, we will find that the root cause of creating this theory was Dworkin’s questioning the two basic thesis of analytical positivism. MacCormick had to consolidate the position of analytical positivism again according to improving the Separability Thesis and the Social Fact Thesis.The second and the third part of this paper introduce the Institutional Theory of Law from the standpoint of the basic thesis of analytical positivism. The second part introduces Institutional Moral. Institutional Moral insisted that the law was logistically separated from the moral.The third part of this paper introduces Institutional Fact. Institutional Fact hold that the law was not only a philosophical fact but also a sociological fact, which made a new contribution for the Social Fact Thesis.The last part of this paper mentions the value of the Institutional Theory of Law. Firstly, make sure that this theory still belongs to analytical positivism. Secondly, expatiate the contribution to new analytical jurisprudence according to comparing MacCormick’s theory with Raz’s and Coleman’s. At last, expatiate the contribution of this theory to analytical positivism.

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CLC: > Political, legal > Legal > Theory of law (Law) > History of law,legal history of ideas > World
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