Law and Legal Reasoning

Law and Legal Reasoning* Stefano Bertea 1. Introduction Reasoning within the law and about the law is a central activity in legal practice. Thus, legal scientists advance what they see as reasonable interpretations of laws and back these choices up with arguments—both of these tasks requiring reasoning. Lawyers, too, engage in reasoning, but their aims are more specific and concrete: when they bring cases to court they have to interpret norms and precedents, qualify concrete cases, and offer reasons in support of their conclusions. Judges decide cases, an activity that makes it necessary to find and reconstruct the rule of law, which means interpreting norms and applying them to concrete circumstances, weighing principles, settling conflicts between provisions in the same legal order, following precedents, ascertaining and qualifying facts, determining a solution to the case at hand, and justifying the chosen solution. All these operations are argumentative. And lastly, in any developed democracy, legislators tend to offer reasons that will make their deliberations more easily acceptable to the citizenry—which means that even lawmaking institutions engage in reasoning. Unsurprisingly, then, legal reasoning has attracted the attention of several leading researchers from different disciplines over the last few decades, to the point of taking hold as an autonomous field of research in its own right.1 In jurisprudence, this interest in argumentation is most significant in the seminal works published in the late 1970s through the 1980s by a group of scholars seeking to arrive at a general doctrine of law informed by the recognition of the centrality of reasoning in legal practice.2 Among these pioneers is Neil MacCormick, who in Rhetoric and the Rule of Law has recently revised a * Funding for this research has been provided by the Alexander von Humboldt Foundation. My indebtedness goes to several scholars who have supplied helpful comments to previous versions of this essay: I should therefore like to thank Robert Alexy, Francesco Belvisi, and the scholars who took part in the Author’s Day on MacCormick’s Rhetoric and the Rule of Law, an event held at Queen’s University of Belfast on 28 April 2006 and organized by the Northern Ireland Legal Quarterly and the Forum for Law and Philosophy. Needless to say, responsibility for the views expressed herein, as well as for any errors of form or content, rests solely with me. 1 Among those who have contributed to legal argumentation in recent years, we find not just legal scholars but also philosophers and argumentation theorists—their work has helped us gain a deeper understanding of practical and legal reasoning, in which regard the most valuable insights can be found in C. Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (Notre Dame: Notre Dame University Press, [1958] 1969); S. Toulmin, The Uses of Arguments (Cambridge: Cambridge University Press, 1958); E. van Eemeren and R. Grootendorst, Speech Acts in Argumentative Discussions: A Theoretical Model for the Analysis of Discussions Directed towards Solving Conflicts of Opinion (Dordrecht: Foris, 1984); and J. Habermas, The Theory of Communicative Action, vols. 1 and 2 (Boston: McCarty, [1981] 1984 and 1987). 2 The most important contributions to the analysis of rational reasoning in law are A. Aarnio, R. Alexy, and A. Peczenik, “The Foundation of Legal Reasoning,” Rechtstheorie 12 (1981): 133–158, 259–273, 423–448; A. Aarnio, The Rational as Reasonable: A Treatise on Legal Justification (Dordrecht: Reidel, 1987); R. Alexy, A Theory of Legal Argumentation (Oxford: Clarendon, [1978] 1989); A. Peczenik, On Law and Reason (Dordrecht: Reidel, 1989); and N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994). 2 theory of legal argumentation that he had originally put forward in 1978 in Legal Reasoning and Legal Theory. Here, I will address a particular aspect of MacCormick’s revised theory of legal reasoning, namely, the way his latest views on legal argumentation carry implications for the concept of law. I will compare these views against those set out in his earlier Legal Reasoning and Legal Theory, arguing that the recent revision of this theory in Rhetoric and the Rule of Law conceptualises the law in a non-positivist fashion. Thus, I will first present the main features of MacCormick’s revised theory of legal reasoning, clarifying its nature and scope and showing that this revised theory makes legal reasoning a constitutive element of the concept of law. I will then argue that this conceptual link found to exist between legal reasoning and law is rich in theoretical implications not only for the study of legal argumentation (legal methodology) but also for our way of conceptualising the law (legal ontology). Now, in making legal reasoning constitutive of the concept of law, the revised theory embraces a foundational element of non-positivism, and that is the burden of my argument. Once we have established that fact, we will abandon the traditional image of MacCormick as the torchbearer of legal positivism and come to view him instead as the missing link between Hart’s legal positivism and Dworkin’s non-positivist research programme. 2. MacCormick’s latest thoughts on legal reasoning MacCormick’s theory of legal reasoning is well known among legal scholars and so does not need to be explained in any detail. Still, a brief introduction that outlines its main features will help us see it in its most recent evolution. MacCormick initially advanced a study of legal reasoning that was highly consistent with H. L. A. Hart’s analysis of the concept of law, an analysis that pays little attention, if any, to the structure of reasoning in law.3 This way, the study of legal reasoning is made out to consist in an investigation of the argumentative practices that decision-making authorities carry out to justify their decisions. This investigation is both analytical and normative, for it reconstructs the practices of adjudication in their concrete operation within a given order (analytical part), and it also sets out prescriptions about how legal decision-making should be justified from a rational point of view (normative part).4 On these premises, MacCormick scrutinises the form of 3 MacCormick himself states that his own account of legal argumentation in Legal Reasoning and Legal Theory can be “represented as being essentially Hartian, grounded in or at least fully compatible with Hart’s legal positivistic analysis of the concept of law . . . it was put forward as a theory of legal reasoning that upheld Hartian jurisprudence. . . . The centrality of rule-based reasoning in this book matched the centrality of the ‘union of primary and secondary rules’ in Hart’s jurisprudence” (N. MacCormick, Legal Reasoning and Legal Theory [Oxford: Clarendon, {1978} 1994], pp. XIV–XV). 4 N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 13. 3 argumentation specific to law and identifies the structure and scope of the rational constraints to which actual adjudicative practices should be subjected. There are some basic rational constraints that MacCormick imposes on legal adjudication. The first of these requires that justification in law be carried out in keeping with the principle of universalisability, a requirement that MacCormick has recently explained as presenting two sides: “First, it demands universalisability of reasons—for the present instance of circumstances C to count as a reason now for reaching decision D, and acting on D, it would have to be acceptable to hold a decision of type D appropriate whenever an instance of C occurs. Second, it suggests a way of testing whether it is warranted to assert that D is appropriate whenever C obtains.”5 Another basic rational constraint on legal adjudication consists in requiring that justification be carried out in keeping with deductive logic. Legal reasoning will take an entirely deductive, or syllogistic, form on those occasions when no problems interpose as to relevancy, interpretation, classification, evaluation, or proof, and the justification of a ruling will therefore consist in constructing a legal syllogism, or a longenough chain of legal syllogisms, in the form “if OF then NC, and OF, therefore NC.”6 But this kind of deductive reasoning—a first-order mode of justification—encounters limitations when brought into the realm of law. These limitations are owed to the fact that the premises of a legal syllogism can be questioned, and to the fact that any attempt to work out the factual and legal matters of the case at hand will necessarily be narrative. Hence, when legal reasoning is made to follow a rational course, it will obey further criteria that expand beyond the domain of classical logic. These further criteria are defined standards of second-order justification, in that their function is to guide us in choosing among rival rulings—all possible because equally valid in form—and in providing a justification for that choice. This is where MacCormick has given a major contribution to the study of legal reasoning: in setting out these criteria of second-order justification, and three fundamental ones in particular, namely, consistency, coherence, and the consequentialist mode of argumentation.7 Consistency he describes as a relationship of 5 N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 21. On the significance of the idea of universalizability for legal reasoning, see, among others, N. MacCormick, “Formal Justice and the Form of Legal Arguments,” Logique et analyse (1976): 110–111 (pp. 103–118); N. MacCormick, “Universalization and Induction in Law,” in Reason in Law, ed. by C. Faralli and E. Pattaro (Milan: Giuffrè, 1987), 91 (pp. 91–105); N. MacCormick, “Why Cases Have Rationes and What These Are,” in Precedent in Law, ed. by L. Goldstein (Oxford: Clarendon, 1987), 162 (pp. 155–182); and N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 84. 6 On this aspect, see N. MacCormick, “Legal Deduction, Legal Predicates and Expert Systems” International Journal for the Semiotics of Law (1992): 182 (pp. 181–201); N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 19–52; and N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 33–48. 7 N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 100–128. 4 non-contradiction: a ruling is consistent with other provisions of the normative system if it does not contradict any valid rule of that system. Coherence is a looser requirement that describes the ability of a part to fit into a whole; the parts are thus said to all cohere when—in figurative language—they “hang together” or “make sense as a whole.”8 Finally, the consequentialist criterion directs the decision-maker to justify the chosen rulings on the basis of their legal implications and whether these can be accepted. To put it in a formula, on MacCormick’s account of the structure of legal justification, a decision is rationally justified if, once universalised, it proves consistent and coherent with previously enacted laws and carries implications that are acceptable from the legal point of view. In this justificatory scheme, a ruling must make sense both in its own legal system and in the outside world. In particular, a ruling’s consistency and coherence with the other normative statements inhabiting a given legal system ensures that the ruling can make sense within the system; the acceptability of the ruling’s consequences (the consequentialist criterion) ensures its ability to make sense in the world. This scheme of legal justification has essentially remained the same since the publication of Legal Reasoning and Legal Theory. Under that respect the recent changes introduced with Rhetoric and the Rule of Law are sparse and mostly concerned with questions of detail, leaving the core of the view unaltered.9 What instead does stand significantly affected is the picture that emerges of the relationship between legal reasoning and the concept of law. The discussion in Rhetoric and the Rule of Law seems to suggest at several places that MacCormick is now committed to the view that the practice of legal reasoning is constitutive of the concept of law, and that law is therefore an argumentative domain through and through. I will call this claim the argumentation thesis—a thesis absent from MacCormick’s original account—and will argue it to be deeply embedded in the revised theory. The argumentation thesis—this new way of understanding the law as closely bound up with legal reasoning—carries a spectrum of theoretical implications. We can appreciate the 8 The expressions “hanging together” and “making sense as a whole” are found in N. MacCormick, “Coherence in Legal Justification,” in Theory of Legal Science, ed. by A. Peczenik (Dordrecht, Reidel, 1984), 235 (pp. 235– 251). Other original attempts at elucidating the notion of coherence can be found in B. Levenbook, “The Role of Coherence in Legal Reasoning,” Law and Philosophy 3 (1984): 355–374; R. Alexy and A. Peczenik, “The Concept of Coherence and Its Significance for Discursive Rationality,” Ratio Juris 3 (1990): 130–147; V. Rodriguez-Blanco, “A Revision of the Constitutive and Epistemic Coherence Theories of Law,” Ratio Juris 14 (2001): 212–232; and L. M. Soriano, “A Modest Notion of Coherence in Legal Reasoning: A Model for the European Court of Justice,” Ratio Juris 16 (2003): 296–323. A critical approach to the role of coherence in law is found in J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon, 1994), 277–325, and K. Kress, “Coherence,” in A Companion to Philosophy of Law and Legal Theory, ed. by D. Patterson (Oxford: Blackwell, 1999), 533–552. 9 This is what MacCormick underlines in his statement that despite the changes made to his original account of legal reasoning, “the basic forms of legal argument” still seem to him to “have been well described in the 1978 book” (N. MacCormick, Rhetoric and the Rule of Law [Oxford: Oxford University Press, 2005], 1). 5 full significance of this thesis if we consider that it can be used to distinguish the two main contemporary approaches to legal reasoning: the “traditional” approach and the “alternative” one. The traditional approach to legal argumentation acknowledges that most legal operations are argumentative and that legal reasoning accordingly plays a crucial role in shaping the features of legal orders—but the shaping hand of legal reasoning is not, on this view, understood to be so pervasive as to go to the concept of law. This concept can therefore be articulated independently of the main advancements made in the study of legal reasoning, precisely because legal reasoning is understood not as a ubiquitous practice—one that spreads across the whole of the realm of law—but as a specific component, and ultimately a peripheral one. The traditional approach, then, denies the argumentation thesis, and in fact falls in sympathy with legal positivism, which takes into account the various forms of legal reasoning that contribute to shaping the legal system but then rejects the claim that legal reasoning itself influences our way of conceptualising the law.10 By contrast, the alternative approach regards the theory of legal reasoning as a vantage point from which to analyse legal systems and tackle the main problems connected with their existence. Thus, rather than figuring as merely one component among others in a theory of law, as happens in the traditional approach, legal reasoning takes shape as an all-embracing activity whose consequences invest the study of legal issues across the board. So we can appreciate, on the alternative approach, that the reasoning that legal subjects engage in when seeking appropriate solutions to concrete cases is part and parcel of law, not an external component of it, and therefore no less constitutive of the nature of law than are the law’s general and abstract rules. This view amounts to the claim that in addition to shaping specific stages in the development of a legal system, legal reasoning also shapes the law as a whole, and incisively so. This can be expressed from the viewpoint of the argumentation thesis by saying that legal reasoning should be understood as a defining element of law and so as constitutive of the very concept of law.11 If we follow through on the argumentation thesis, we will arrive at a specific non-positivist idea of law that constructs the law as an argumentative social practice aimed at finding 10 Two works that paradigmatically exemplify this conception of legal argumentation are H. Kelsen, Pure Theory of Law (Berkeley and Los Angeles: University of California Press, [1960] 1967), 348–356, and J. Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon, 1979), 180–209. 11 This research programme was first explicitly set out in A. Aarnio, R. Alexy, and A. Peczenik, “The Foundation of Legal Reasoning,” Rechtstheorie 12 (1981): 133–158, 259–273, 423–448 (pp. 266–270). The programme prompted several attempts to question the traditional concept of law and redefine law as an argumentative practice, and the most well-rounded of these attempts are R. Dworkin, Law’s Empire (London: Fontana, 1986), and R. Alexy, The Argument from Injustice (Oxford: Clarendon, [1992] 2002). 6 reasonable solutions to legal cases.12 Law can thus be defined as a dynamic articulation of defeasible reasons, a set of practices of deliberative reasoning, an order constitutively open to external influences.13 This compels us to question the positivist “account of law in terms of the interplay of primary and secondary rules,” where the legal is clearly marked off from the extralegal.14 This positivist account should be replaced by one that recognises the constitutive function of deliberative reasoning in the definition of law. In fact, these two accounts prove ultimately incompatible, as we can appreciate from the fact that positivist theories, for all their variety, are grounded in the idea that law is autonomous from other spheres of practical reason.15 No such autonomy can pertain to a concept of law proceeding from the argumentation thesis, because the idea of law as an enterprise shaped by deliberative reasoning entails that the legal domain is inherently permeable to external influences. In summary of the main points made so far, there is theoretical momentum involved in endorsing the argumentation thesis, because this endorsement will in turn have us embrace a non-positivist account of the nature of law. And this is precisely what seems to happen in the recent evolution of MacCormick’s thought: by endorsing the argumentation thesis, he sets his 12 This concept of law is set out as follows in R. Dworkin, Law’s Empire (London: Fontana, 1986), and R. Alexy, The Argument from Injustice (Oxford: Clarendon, [1992] 2002). Dworkin proposes to make due allowance for the conceptual scope of reasoning through “an interpretive concept” of law under which “judges should decide what the law is by interpreting the practice of other judges deciding what the law is” (Dworkin, Law’s Empire, p. 410). Here, the law is made out to be primarily an argumentative practice: “Law is not exhausted by any catalogue of rules or principles, each with its own dominion over some discrete theatre of behaviour. Nor by any roster of officials and their powers each over part of our lives. Law’s empire is defined by attitude, not territory or power or process. . . . It is an interpretive, self-reflective attitude addressed to politics in the broadest sense” (Dworkin, Law’s Empire, p. 413). In a similar vein, Alexy defines law as a “system of norms that (1) lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that are issued in accordance with this constitution, norms that manifest a minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the extreme, and, finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness” (Alexy, The Argument from Injustice, p. 127). On this definition, the law is made to consist not only of rules but also of normative arguments and procedures for the application of law, and these elements—the normative arguments—require us to embark on deliberative reasoning. 13 This definition is far from incompatible with the statement—central to MacCormick’s theory—of the institutional nature of law. See, in this regard, N. MacCormick and O. Weinberger, An Institutional Theory of Law (Dordrecht: Reidel, 1986), and N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 2–7. In fact, legal reasoning will remain deeply institutional for as long as legal deliberation requires making reference to authoritative sources (a necessary but not a sufficient condition). Thus, far from losing sight of the institutional dimension of law, the argumentation thesis draws that dimension into the core level of legal reasoning, in the connection that must be established between a legal ruling and the institutional shape of the legal order in which that ruling is issued. 14 H. L. A. Hart, The Concept of Law (Oxford: Clarendon, [1961] 1994), 82. 15 This idea is most clearly expressed in the words of Jeremy Waldron, who finds that on a positivist approach, “law can be understood in terms of rules and standards whose authority derives from their provenance in some human source, sociologically defined, and which can be identified as law in terms of that provenance. Thus statements about what the law is—whether in describing a legal system, offering legal advice, or disposing of particular cases—can be made without exercising moral or other evaluative judgement” (J. Waldron, “The Irrelevance of Moral Objectivity,” in Natural Law Theory, ed. by R. P. George [Oxford: Clarendon, 1992], 160 (pp. 158–187). 7 theory within the same theoretical horizon as that of the alternative approach to legal argumentation, and in so doing he winds up taking on board a fundamentally non-positivist element. Thus, once it is established that he has in fact endorsed this thesis, he can be said to have finally parted ways with legal positivism. This conclusion may sound astonishing if we consider that MacCormick has long championed legal positivism, or at least has long been regarded that way—and even his latest work on legal reasoning fails to show strong textual evidence on which basis to qualify his account of law as non-positivist. MacCormick makes at best the modest statement that the trajectory of his thought “has been away from some elements of the legal positivism expounded by H. L. A. Hart . . . that formed the backcloth to the argument in Legal Reasoning and Legal Theory.”16 By the same token, MacCormick’s own definition of his theory as “post-positivistic” is a claim still too timid to support on its own the view that MacCormick has now paved the way to a non-positivist concept of law.17 In fact, the expression “post-positivistic” is open to the ambiguity that it can refer to a range of legal theories whose only trait d’union consists in their stemming from legal positivism all the while distancing themselves from it. The expression can therefore be used to indicate that a theory continues to bear a strong connection with legal positivism, but at the same time it suggests that the connection is not so strong as to make the theory entirely traceable to legal positivism. These perplexities I address in the remainder of this paper, where I first argue that MacCormick has actually endorsed the argumentation thesis and will then argue that this thesis is deeply non-positivist. If these two claims prove correct, the conclusion will seem inescapable that MacCormick’s recent developments force on him a non-positivist account of the nature of law. 3. MacCormick’s endorsement of the argumentation thesis In this section I offer some grounds in support of my claim that MacCormick’s latest contribution to legal reasoning commits him to the argumentation thesis—a thesis that he does not anywhere explicitly articulate. The first ground in support of MacCormick’s endorsement of the argumentation thesis consists in showing that MacCormick endorses two other claims that, taken jointly, entail the thesis. The first of these claims is that legal reasoning is omnipresent in legal practice and plays a pivotal role in shaping legal orders. The second claim is that legal reasoning is bound by a relationship of reciprocity with the concept of law, in that the way we account for this concept is going to depend on, and be influenced by, the theory we frame of legal reasoning, and vice versa. 16 17 N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 1. Ibid., 2. 8 This is not the first time, with Rhetoric and the Rule of Law, that MacCormick presents legal reasoning as omnipresent in law, to be sure, but in no other work is he as insistent and emphatic in making the point that argumentation exerts a deep influence on law—so much so that the revised theory of legal reasoning presents the point as a truism: “Recognition of law’s domain as a locus of argumentation, a nursery of rhetoric,” is “no less ancient than recognition of the Rule of Law as a political ideal.”18 The argumentative nature of law should thus be seen as a platitude, an idea whose truth can be taken for granted and needs no theoretical support.19 So there is no reason to doubt that “law is an argumentative discipline”20 since the “quality of law” is “argumentative”21 and the “character of legal proceedings” is “dialectical or argumentative.”22 Now, this general point is far from inconsistent with the core of MacCormick’s theory of law. But the outright statement of the point, and the centrality it is given in the argument, represents a significant shift in emphasis in MacCormick’s recent work. Clearly, there may well be historical reasons for MacCormick’s decision of making explicit the view that legal reasoning is pervasive. In other words, MacCormick first set out his theory of legal reasoning when legal theory had just begun to address frontally and systematically the question of legal argumentation: Few assumptions about legal argumentation could be taken for granted back then. But the situation today has changed almost beyond recognition: After decades of study, there is much more awareness that practically at any stage of what is ordinarily considered the legal domain we resort to reasoning. No longer is it so arbitrary to assume argumentation to be central in law, now that the theory of legal reasoning has developed fully and enables us not only to recast longstanding debates in a new light but also to revise several basic notions in traditional jurisprudence.23 But the historical perspective can at best explain why MacCormick has now placed a stronger emphasis on the argumentativeness of law—it cannot help us understand the theoretical reasons for this shift in emphasis. And a theoretical account of the shift is precisely what we are after, because it is in theoretical terms that MacCormick frames his revised attitude toward the ubiquity of legal reasoning, just as it is in theoretical terms (rather than historical ones) that the significance of the shift should properly be understood. 18 Ibid., 13. Ibid., 14–15. 20 Ibid., 14. 21 Ibid., 16. 22 Ibid., 26. 23 See S. Bertea, “Legal Argumentation Theory and the Concept of Law,” in Anyone Who Has a View: Theoretical Contributions to the Study of Argumentation, ed. by F. H. van Eemeren, J. A. Blair, C. A. Willard, and A. F. Snoeck Henkemans (Dordrecht: Kluwer, 2003), 213–226, where I provide a deeper analysis of the ways in which the study of legal argumentation can influence other parts of legal theory. 19 9 For a better theoretical grasp of MacCormick’s new emphasis on the argumentativeness of law, we should read this emphasis in conjunction with another thesis, one that MacCormick has espoused since his seminal work on legal reasoning, and this is the thesis by which a conceptual connection is established between theories of legal reasoning and theories about the concept of law: “A theory of legal reasoning requires and is required by a theory of law. . . . Any account of legal reasoning . . . makes presuppositions about the nature of law; equally, theories about the nature of law can be tested out in terms of their implications in relation to legal reasoning.”24 Now, when this thesis—the conceptual connection between the theory of legal reasoning and the theory of law—is made to work in combination with the thesis that argumentative practices are pervasive and shape the deep features of legal systems, the outcome is, I believe, that we must necessarily also conceive of law as an argumentative practice through and through. In fact, this last claim—a restatement of the argumentation thesis—adequately explains the two other theses and provides them with a direct foundation. We can elucidate the connection among the three theses by analyzing the way the last of them (the argumentation thesis) singly relates to each of the other two.25 First, the thesis that legal reasoning is constitutive of the concept of law can elucidate and ground the thesis that pervasive in law is the practice of arguing about the law and about questions of law generally. This link between the two theses is manifest in the widely acknowledged view that the concept of law ideally precedes all other questions of law, for it is here—in the concept setting out the nature of law—that many specific legal issues are rooted.26 This view rests not only on theoretical considerations but on practical ones, too: We need to have a concept of law in place (a concept framing the nature of law) before we can proceed to distinguish what is law from what is not law. The distinction made on this basis will in turn be a direct influence on judicial decision-making and on the way cases should be 24 N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 229. Remarkably, endorsing these three theses together also makes it possible to better appreciate the extent of MacCormick’s sensitivity to legal argumentation: MacCormick’s acknowledgment that law is argumentative comes even in the course of an analysis of the lawmaker’s perspective—a perspective that, other things being equal, makes it more difficult (not less difficult) to appreciate the law’s argumentative dimension. Even so, MacCormick cannot seem to underscore the importance of legislation (the lawmaker’s perspective) without also pointing out that “the job of legislation is never completed when the text of a statute leaves the legislature” and that the “final process of concretization or determination . . . will still have to take place through judicial decision”; even more importantly, the observes that legislation “changes things in a certain direction, perhaps, but we cannot be sure exactly what change it will in the end have made, how broad its impact, with what exact effect in concrete situations as these will arise in the domains affected” (N. MacCormick, Rhetoric and the Rule of Law [Oxford: Oxford University Press, 2005], 10–11). As I see it, what makes it possible to state this point in this context (an analysis carried out from the lawmaker’s perspective) is a framework of thought shaped by the three related theses to the effect that argumentation is constitutive of law, and so is omnipresent in law, and hence that the theory of legal reasoning and the theory of law are interdependent. 26 This view is widely accepted among contemporary legal theorists. For a contrary view, see R. Posner, Law and Legal Theory (Oxford: Clarendon, 1996), 3. 25 10 decided. And how judges go about deciding cases (or how they should proceed in doing so) certainly does make a practical difference. So legal theorists and practitioners alike need to have a grasp of the nature of law—they need a general account of law, however tentative it may be—if they are to proceed in any satisfactory manner to take on the specific legal questions that confront them. This shows that questions concerning the nature of law occupy a central place in the legal domain and are indeed pervasive. Which in turn means that likewise central and pervasive are the elements constitutive of law (of the nature of law), in the sense that these elements are bound to bear on the solution to specific legal questions, whether directly or indirectly. The argumentation thesis counts legal reasoning among these constitutive elements, thereby explaining and justifying our belief that reasoning is central to and pervasive in law. In other words, in showing the concept of law to be dependent on legal reasoning, the argumentation thesis shows reasoning to be central to the legal enterprise— central because part of the concept of law, which in turn takes us to the core of legal practice. This amounts to recognizing legal reasoning to be omnipresent in legal practice simply by virtue of its being constitutive of the concept of law, and by virtue of the fact that this question—of the concept of law—is widely recognised to be inescapable. Second, the argumentation thesis can explain why legal reasoning and the concept of law have to be theorized together, in mutual dependence, in that no theory of legal reasoning can be worked out without a companion theory framing a concept of law (describing the nature of law) and, vice versa, no comprehensive understanding of law (of the concept of law) can be achieved without an accompanying account of legal reasoning. The most direct explanation of this two-way relationship between the two accounts consists in pointing out the conceptual link that binds their respective objects of study: the concept of law and legal reasoning. This link is one of mutual engagement—each object being constitutive of the other—and it is for this reason that we cannot have a full theoretical understanding of law without an account of legal reasoning. The constitutive connection between law and legal reasoning explains that in order to conceptualise one element of the pair we will necessarily have to make some theoretical assumptions about the other. Thus, by establishing a necessary link between legal reasoning and the concept of law, the argumentation thesis shows that no theoretical account of the nature of law can make sense independently of an account of legal reasoning, and vice versa. To put it otherwise, the object-level, or discourse-level, connection between law and legal reasoning, while not explicitly stated in MacCormick, should be espoused nonetheless because it ultimately justifies the methodological (or metadiscourse) connection, which he does instead make explicit. 11 In summary so far, the three theses—the argumentation thesis, the thesis of the omnipresence of argumentation in legal practice, and the thesis of the interdependence between the theory of law and the theory of legal reasoning—form in my reconstruction a tight-knit unit. Moreover, and more significantly, what gives coherence to this triad and cements it is the argumentation thesis, which connects the two other theses and grounds their truth. But the explanatory and justificatory power of the argumentation thesis goes beyond that. The argumentation thesis—and this is a further ground for the view that MacCormick has recently endorsed this thesis—provides as well the best explanation of the sympathetic attitude MacCormick has recently taken to Ronald Dworkin. Whereas in Legal Reasoning and Legal Theory MacCormick takes a thoroughly critical approach to Dworkin’s interpretive theory of law, without also engaging in any constructive interchange,27 in his recent Rhetoric and the Rule of Law he points up several convergences between his own thought and Dworkin’s. MacCormick’s recent turn toward the interpretive approach is not unqualified, to be sure: Even in Rhetoric and the Rule of Law we find significant criticisms of Dworkin’s theory.28 But these criticisms are made within an overall appreciation of Dworkin and should therefore be interpreted more as constructive than as dismissive. MacCormick’s welcoming attitude, far from sporadic or occasional, emerges most clearly in his willingness to stress the similarities between his own method and Dworkin’s, as well as to stress the substantial agreement in the conclusions reached. Thus, for one thing, MacCormick notes that the method he follows in his latest work on legal reasoning “chimes quite closely” with Dworkin’s method, shaped by the idea that “it is out of rival conceptions of legality rather than by way of some kind of empirical description of things as they are or of the semantics of ordinary language that we develop different possible philosophies of law.”29 For another thing, these methodological similarities are supplemented by an agreement in substance, in the sense that MacCormick considers his own institutional approach “in a broad way compatible” with 27 N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon, [1978] 1994), 229–274. In particular, MacCormick calls into question Dworkin’s definition of law as an interpretive enterprise, and especially the notion that “every venture into discussion of what law requires . . . calls for an effort of ‘interpretation’” (N. MacCormick, Rhetoric and the Rule of Law [Oxford: Oxford University Press, 2005], 140). MacCormick also takes issue with Dworkin’s “thesis about ‘constructive interpretation’, according to which interpretation regards a whole activity within a certain genre, and seeks to understand it in such a way as to make it the best of its own kind that it can be” (ibid., 140). This way of understanding the relationship between law and interpretation is criticised as amenable to the risk of oversimplification insofar as it prevents us from realizing that “there are different objects of interpretation in law, and differences of interpretative approach and interpretative arguments appropriate to different objects” (ibid., 140). Finally, MacCormick (ibid., 140–141) finds that Dworkin fails to appreciate in full the role played by coherence in law, and fails as well to appreciate that the notion of constructive interpretation should at best be seen as an overarching concept enabling us to sum up more-specific argumentative practices revealed to us through the process of rational reconstruction. 29 Ibid., 28. 28 12 Dworkin’s interpretive approach to political philosophy.”30 In fact, when law is conceived of as “an institutional order,” it “amounts to a shared framework of understanding and interpretation among persons in some social setting.”31 The convergence between the two approaches is thus warranted by their agreement that “as a normative order, [the law] is in continuous need of interpretation, and as a practical one, in continuous need of adaptation to current practical problems.”32 MacCormick’s revised attitude and framework can be explained by describing his recent views on legal reasoning as a move toward the same legal paradigm as that which underlies Dworkin’s jurisprudence, a paradigm defined and delimited by the argumentation thesis. On this reading, the critical attitude initially taken toward Dworkin is owed for the most part to the fact that MacCormick’s early theory of legal reasoning, one that connects closely with Hart’s orthodoxy, belonged to a theoretical horizon that did not include the argumentation thesis and so was altogether different from Dworkin’s interpretive view. This prevented MacCormick from fully appreciating the interpretive turn that Dworkin had given to legal theory, and it also prevented MacCormick from engaging in any constructive interchange with Dworkin. But in MacCormick’s latest work the situation has changed: The loosened connection with Hart’s positivism and framework now does enable him to pay explicit and specific attention to Dworkin’s contribution.33 On this reading, then, MacCormick’s recent adherence to the argumentation thesis—a defining trait of Dworkin’s interpretivism—explains why MacCormick has recently become sympathetic to Dworkin’s interpretive jurisprudence, and it more generally explains the relationships between MacCormick’s and Dworkin’s theories. This claim that MacCormick’s and Dworkin’s theories belong to the same theoretical horizon can be corroborated by a critical appraisal of MacCormick’s proposed methodology, namely, the methodology of rational reconstruction. This methodology and concept is reframed in MacCormick’s latest work on legal reasoning, and in addition to innovating on his earlier theory, it also provides an additional reason to believe that he has finally come to endorse the argumentation thesis. The methodology of rational reconstruction was placed at the centre of the legal-theoretical discussion in the early 1990s by some leading contemporary legal scholars, MacCormick being one of them.34 But in his latest work on legal reasoning, MacCormick clarifies this 30 Ibid., 6, n. 5; cf. 2–7 and 23–31. Ibid., 6. 32 Ibid., 6. 33 Ibid., 1. 34 I am referring here in particular to Z. Bankowski, N. MacCormick, R. Summers, and J. Wroblewski, “On 31 13 method and further elaborates on it. The original methodology of rational reconstruction outlined a set of specific intellectual operations aimed at managing legal materials. This is a narrow conception of rational reconstruction understood as a local and parochial method of legal analysis, setting out a class of operations specifically carried out by legal practitioners and legal theorists (dogmatic ones in particular) when they are confronted with the problem of wading through, and making sense of, the mass of legal materials, sometimes a chaotic mass. In the revised and broader conception, rational reconstruction is instead presented as a comprehensive “method for dealing with the interpretation and elucidation of large bodies of data or material in the context of the humanities.”35 So the methodology now includes the intellectual activities that legal experts have to carry out to apply and elucidate legal materials, but it goes beyond these activities, referring more generally to the attitude that legally minded people have toward legal materials. Rational reconstruction can thus be defined as an allembracing methodology, a comprehensive approach to legal issues that is alternative not to other ways of conceptualising specific legal operations but to the wide-ranging method of constructive interpretation put forward by Dworkin as the paradigm for the judges’ handling of texts of law.36 MacCormick’s broad conception of rational reconstruction is an improvement on Dworkin’s method of constructive interpretation. Dworkin generically qualifies any treatment of legal material as “interpretation” and so fails to specify the variety of operations carried out by different legal subjects. This interpretation-centred method, then, lacks analytical precision and depth. In contrast, MacCormick’s methodology can both enable us to grasp the hermeneutical nature of legal activities and make room for a more accurate and illuminating account of the multitude of activities that legal subjects need to carry out to make sense of raw legal materials. Unlike Dworkin’s method, for which everything is interpretation, and nothing else besides, MacCormick’s methodology enables us to grasp not only the common denominator of legal practices, but also the distinctions among them: We can therefore use the method to distinguish such activities as selecting relevant bits from the unanalysed mass of normative provisions, making sense of these selections as parts of a coherent whole, describing the overall order starting from a state of normative disorder, justifying the chosen interpretive decisions, weighing and balancing different possible alternative rulings, Method and Methodology,” in Interpreting Statutes: A Comparative Study, ed. by N. MacCormick and R. Summers (Aldershot: Dartmouth, 1991), 9–27. 35 N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 29. 36 MacCormick clarifies this point in his statement that his broad conception of rational reconstruction is intended “to address rather than avoid (far less declare misdirected) the challenge launched by Dworkin concerning interpretivism” (ibid., 29). 14 ascertaining and systematising legal norms, resolving conflicts between directives in the same legal order, following precedents, constructing statutes, and providing legal classifications of facts. Compared with Dworkin’s too vague and imprecise treatment, then, MacCormick’s alternative method allows us to describe different legal activities analytically and to deal with them separately. MacCormick’s approach therefore avoids the vagueness, imprecision, and oversimplification inherent in Dworkin’s theory, while at the same time it preserves an essential claim to comprehensiveness and unity. But these advantages of MacCormick’s theory cannot be reaped unless his methodology of rational reconstruction is coupled with the argumentation thesis, which alone can secure the comprehensive scope of that methodology. This is so because comprehensiveness is not an inherent attribute of legal methods but a property that a method acquires from a constellation of substantive assumptions. More specifically, the degree of comprehensiveness is bestowed on a method by the method’s capacity to give us an understanding and an elucidation of objects that are likewise constitutively comprehensive. For this reason, rational reconstruction cannot work as a global method with which to attack legal issues, so it cannot be compared to the method of constructive interpretation unless it can be made to provide insights into the nature of law, rather than providing us with information about specific and less-thancomprehensive legal practices. And the only way rational reconstruction can gain this capacity is by coupling with the substantive assumption that the set of activities whose scope it contributes to clarifying must be recognized as constitutive of the very idea of law, rather than as constitutive of specific elements within the legal order. Indeed, even though rational reconstruction is concerned with different activities, these activities, for all their differences, are at bottom hermeneutical practices; that is, they are all a case of deliberative reasoning. Rational reconstruction, then, is aimed at elucidating key elements of legal reasoning, and can accordingly be understood to be comprehensive only insofar as legal reasoning can itself be recognized as a comprehensive practice, a practice capable of revealing something about the nature of law. But this only holds true if the argumentation thesis holds true. It is by endorsing the argumentation thesis, then, that we transfer to the method of rational reconstruction the same level of generality and comprehensiveness ascribable to Dworkin’s constructive interpretation. Thus, rational reconstruction cannot as such claim the same comprehensiveness as constructive interpretation—it can do so only on the condition of recognizing legal reasoning as constitutive of the concept of law. Stated otherwise, if MacCormick wants to bestow on his methodology for dealing with argumentative practices—the method of rational reconstruction—the same 15 comprehensiveness that Dworkin’s interpretive reconstruction achieves, he will have to consider argumentative practices to be constitutive of the concept of law in the same way that Dworkin understands interpretation to be constitutive of the same concept. Failing that, rational reconstruction would at best manage to clarify specific features of specific legal systems: The method would amount to no more than a technique for handling marginal problems in law and so could not stand in any real competition with constructive interpretation, nor would there be much point in comparing the two methods. In MacCormick and Dworkin alike, adherence to the argumentation thesis is the conditio sine qua non that makes it possible to generalise an otherwise case-specific and parochial method. MacCormick therefore finds himself having to endorse the argumentation thesis as a result of his theorising a broad conception of rational reconstruction. And this broad conception is itself what actually enables the method of rational reconstruction to work as a genuine alternative to constructive interpretation. The argumentation thesis thus ultimately proves to be the tacit presupposition of the claim to comprehensiveness that MacCormick in his recent work attributes to rational reconstruction. In conclusion, MacCormick’s revised theory can be shown to require at its core an acceptance of the argumentation thesis, as a device with which to both explain and justify the theory. Thus, on the one hand, we can explain and ground on this basis two views in legal reasoning that are foundational in MacCormick—namely, the centrality of argumentation in law and the interdependence between legal reasoning and the concept of law; on the other we can use the argumentation thesis to make sense of the relationships between MacCormick and Dworkin, as to both method and substantive theory. 4. The non-positivist dimension of the argumentation thesis My claim that MacCormick’s revised theory of legal reasoning embeds a non-positivist element depends crucially on the claim that the argumentation thesis is a defining feature of non-positivism. This latter claim I will support here by showing that the choice whether or not to accept the argumentation thesis discriminates between positivism and non-positivism. So, too, legal positivism cannot accept the argumentation thesis without renouncing some of its foundational views. The non-positivist dimension of the argumentation thesis emerges paradigmatically in the work of a champion of Anglo-American legal positivism, Joseph Raz. Raz grounds the concept of law on the strong version of the social thesis, or sources thesis, under which “what 16 is law and what is not is a matter of social fact.”37 On the strong version of this thesis, which Raz embraces, the tasks of identifying the law and determining the contents of law “depend exclusively on facts of human behaviour capable of being described in value-neutral terms, and applied without resort to moral argument.”38 This is tantamount to defending the conceptual separation, or separability, of law and morality; that is, to claiming that the criteria of legal validity need not necessarily consist, either partly or entirely, of moral standards.39 In Raz’s version of legal positivism, what requires a morally neutral definition of law is the authoritative mode by which legal institutions function: if the law is to exert any authority, it must be a sort of institution that in principle possesses the fundamental properties of an authority, meaning that like any other authority, it must be able to issue statements identifiable without having to rely on their underlying (moral) justification.40 This requirement entails that the law can only be authoritative if its directives are independent of the moral reasons that justify them. Raz concludes on this basis that the nature of law is ultimately a matter of social fact, not of moral values. But this morally neutral characterisation of law can only hold up on condition of making the concept of law autonomous from legal reasoning, because legal reasoning consists at least in part in “straightforward moral reasoning.”41 In particular, legal reasoning is understood by Raz to consist in two main practices: reasoning about what the law is and reasoning about how disputes should be settled under the law. The first practice is connected with the application of law, and to the extent that the contents of law are determined on the basis of the sources thesis, the practice is carried out without relying on moral considerations. Not so in the case of the second practice. Reasoning in compliance with the law is a broader, more complex activity than merely applying the law or establishing what the law is, and in this sense it does involve moral considerations. This argument can be rephrased as follows. Legal reasoning “is a species of normative reasoning. It concerns norms, reasons for action, rights and duties, and their application to general or specific situations.”42 As such, it is not unlike moral reasoning, and this similarity shows that legal reasoning enjoys only a relative and limited autonomy from moral reasoning. In fact, “legal expertise and moral understanding and 37 J. Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon, 1979), 37. Ibid., 39–40; cf. 46–47. This view is defended as well in A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon, 1992), 8 and 39. 39 The claim that the separability of law and morality lies at the core of legal positivism is defended in a number of places, among them K. Himma, “Inclusive Legal Positivism,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. by J. Coleman and S. Shapiro (Oxford: Oxford University Press), 125–165. 40 See J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon, 1994), 199–204 (pp. 194–221). 41 J. Raz, “On the Autonomy of Legal Reasoning” 6 Ratio Juris 1993, 1-16, 8. 42 Ibid., 1. 38 17 sensitivity are thoroughly intermeshed in legal reasoning”;43 rather than being “impervious to moral reasons,” legal reasoning is “an instance of moral reasoning”;44 therefore, if we make legal reasoning a constitutive component of the concept of law, as the argumentation thesis does, we are in effect letting morality into the law. But this contradicts the sources thesis— and the sources thesis is the core of legal positivism. Raz’s treatment thus shows paradigmatically that the argumentation thesis is incompatible with the positivist stance: a legal positivist looking to frame a coherent concept of law understood as determined solely by social facts must keep this concept distinct from legal reasoning, which in contrast is a morally laden practice.45 It may be claimed, generalising Raz’s argument, that the argumentation thesis should be considered a defining trait of non-positivism since the reasoning behind the argumentation thesis can be constructed as an instantiation of the thesis that denies the separability of law and morality, a separability that lies at the core of legal positivism. The close link the argumentation thesis bears with the thesis setting out a conceptual connection between law and morality can be made more explicit if we elaborate further on the reasons why legal reasoning cannot be conceived of as fully autonomous from moral reasoning—we will do so looking at several theoretical approaches in both the positivist and the non-positivist camp. To begin with, the proposed picture of legal reasoning as a specialised type of technical reasoning obedient to its own rules bears no resemblance at all to the judicial practice of contemporary legal systems, because we know for a fact that courts engage and find themselves having to engage in practical reasoning, which by definition includes extralegal elements. It is essential to note here that this appeal to extralegal reasons is not a contingent feature of judicial practice but is rather demanded by the nature of law and the human being. This is something that we get from Hart in his observation that lawmakers, particularly in certain branches of law, can only frame laws in broad terms, incorporating general standards into the texts of law, and crafting provisions that will not cover all the possible concrete cases of application. This is constitutive of the lawmaker’s mode of operating and is due to the fact that legal systems “compromise between two social needs: the need for certain rules which can, over great areas of conduct, safely be applied by private individuals to themselves without fresh official guidance or weighing up of social issues, and the need to leave open, for later settlement by an informed, official choice, issues which can only be properly appreciated and settled when 43 Ibid., 10. Ibid., 14–15. 45 One such coherent account of legal positivism can be found in J. Gardner, J. “The Legality of Law,” Associations 7 (2003): 89-101. 44 18 they arise in a concrete case.”46 This compromise can take different shapes in different legal systems, in that “in some systems at some periods it may be that too much is sacrificed to certainty. . . . In other systems or at other periods it may seem that too much is treated by courts as perennially open or revisable in precedent.”47 But compromise we must, at least some extent, for this is simply a “feature of the human predicament,” the fact that “we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions.”48 The two handicaps Hart is referring to are our relative indeterminacy of aim and our ignorance of the future. What result from these two handicaps are both an inability to make rules that satisfactorily cover all possible future controversies and a need to have norms that are relatively undermined and open to an assessment made at the time the situation takes place. So human nature is such that it is beyond our reach, and is even undesirable, to frame laws so detailed that the question whether they apply or not to a particular case never requires a fresh choice. It is through this sphere of choice, incompleteness, and normative indetermination and openness that extralegal considerations seep into legal reasoning. We need these considerations in legal reasoning if we are to fill the unavoidable gaps in the indeterminate provisions of open-ended disciplines. Among the extralegal reasons that make their way into legal reasoning, a prominent and crucial place is occupied by moral reasons. The most straightforward statement to this effect is Robert Alexy’s special-case thesis,49 whereby “legal discourse is a special case of general practical discourse” and so belongs in the same sphere with moral reasoning.50 Thus, while legal reasoning proceeds under constraints that set it apart from moral reasoning, it takes up the same questions as moral reasoning—namely, the practical question of what should or may be done or avoided—and lays a claim to correctness that is partly moral. The moral quality of the claim to correctness advanced by legal discourse is owed to the fact that this claim incorporates a reference to criteria of rationality and reasonableness, criteria that are shaped, among other things, by moral considerations. The permeability between legal reasoning and moral reasoning therefore results from the ultimate unity and systematic connectedness of practical reasoning.51 The features that legal reasoning shares with moral reasoning—the 46 H. L. A. Hart, The Concept of Law (Oxford: Clarendon, [1961] 1994), 130. Ibid., 130. 48 Ibid., 128. 49 On the special-case thesis, see R. Alexy, A Theory of Legal Argumentation (Oxford: Clarendon, [1978] 1989), 212–220, and R. Alexy, “The Special Case Thesis,” Ratio Juris 12 (1999): 374–384. 50 R. Alexy, A Theory of Legal Argumentation (Oxford: Clarendon, [1978] 1989), 212. 51 Interestingly, the special-case thesis finds MacCormick in agreement with it, for he describes interpretation as “a particular form of practical argumentation in law, in which one argues for a particular understanding of 47 19 sphere in which they both operate, the basic questions they both deal with, and the kinds of claims they both advance—make these two activities only partially and limitedly independent of one another.52 This means that legal reasoning enjoys only an apparent autonomy, but even more importantly, it means that legal reasoning, insofar as it is constitutive of the concept of law, makes the law permeable to moral influences. Accordingly, on a view shaped by the argumentation thesis, the law cannot be understood as an independent and separate sphere of practical reason the way legal positivism would have it. 5. Conclusion In this paper, I have claimed that MacCormick’s recent account of legal reasoning incorporates a non-positivist element deriving from his endorsement of the argumentation thesis: This is the thesis that legal reasoning is constitutive of the concept of law, and the nonpositivist element it carries consists in its being instrumental to the thesis establishing a conceptual connection between law and morality. In the result, MacCormick’s endorsement of the argumentation thesis distances him from the legal positivist account he initially gave of legal argumentation and brings his revised account in line with the non-positivism theorised by scholars like Alexy and Dworkin. But this interpretation of MacCormick’s revised theory carries as well a more general implication, that is, it corroborates the idea that planted in Hart’s legal positivism are the seeds of a non-positivist yield: Hart, perhaps more unwittingly than not, has sown seeds out of which non-positivism has finally grown stronger. And what in particular (on this reading) brought down the legal positivist project, thus enabling non-positivism to flourish, was the attempt to graft a theory of legal reasoning to Hart’s general theory of law. As the development of MacCormick’s thought shows paradigmatically, developing a theory of legal reasoning consistent with Hart’s legal positivist concept of law is an enterprise without prospects: No matter how much we may wish to remain faithful to Hart’s concept of law, we are bound to change this concept fundamentally in any attempt to supplement it with a theory of legal reasoning, even if only to fill a gap. In other words, the moment we set out to authoritative texts or materials as a special kind of (justifying) reason for legal decision. Hence legal interpretation should be understood within the framework of an account of argumentation, in particular, of practical argumentation” (N. MacCormick, “Argumenation and Interpretation in Law” Ratio Juris 6 (1993): 1629, at 16. See also N. MacCormick, Rhetoric and the Rule of Law [Oxford: Oxford University Press, 2005], 139141). This claim amounts to acknowledging the dependence of legal reasoning on practical reasoning—a dependence that in turn makes up the core of the special-case thesis. 52 In the terms of discourse theory, this interdependence can be expressed by presenting legal reasoning as exhibiting both a discursive, morally laden element and an authoritative (or institutional) one that cannot be kept separate from the former. This makes the discursive element the common ground of law and morality, and its incorporation in the authoritative discourse of law therefore becomes a decisive obstacle to the conceptual separation between legal and moral reasoning. 20 investigate legal reasoning from within Hart’s jurisprudence, as MacCormick has set out to do, we will find we have to question some central assumptions of legal positivism. What also seems to follow from this reading of the development of legal positivism, though I cannot lay out the case here, is that in Dworkin’s interpretive approach we have a much less incoherent development of Hart’s reflection on the nature of law than is generally understood. On this reading, Hart’s idea of law as a social practice resulting from the combination of primary and secondary rules does not stand in a relationship of mere contrast with Dworkin’s account of law as an argumentative social practice: A tension may be present, to be sure, but the relationship can also be understood as one continuity and transition from one theory to the other. This introduces a further reason why MacCormick’s theory bears remarkable theoretical interest: This theory constitutes the missing link between Hart and Dworkin, the intermediate stage in the progressive transition from a dominant legal positivist approach to an argumentation-based one. The evolution of MacCormick’s legal theory sheds new light on a contemporary debate that has engaged analytical legal theorists in regard to the concept of law, drawing much interest and causing an equal degree of puzzlement: on one side are those who understand law (the bare bones of law) as an interplay of rules; on the other side, those who understand it as “an interpretive concept,”53 one “not exhausted by any catalogue of rules or principles, each with its own dominion over some discrete theatre of behaviour” but rather defined by an “interpretive, self-reflective attitude addressed to politics in the broadest sense.”54 This is why I think MacCormick’s work has been considered so interesting as to receive “the benefit of many critical reviews and comments (both supportive and corrective),”55 and why it deserves further reflection and critique. 53 R. Dworkin, Law’s Empire (London: Fontana, 1986), 410. Ibid., 413. 55 N. MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), p. IV. 54