On Study Of Neil MacCormick's Institutional Theory Of Law

The task of this dissertation is aimed to reveal the inner structure and the developmental logic of Neil Mac Cormick's Institutional Theory of Law.Generally speaking,there exist two theoretical periods by the division of “law as an institutional fact” and “law as institutional normative order”,so the following works is not only to examine the two aspects separately but also to reveal the inner motivation and detail process of the transition.Specifically,this dissertation is organized as follows:The part of Introduction focuses on two basic questions,one of them is why we should study the institutional theory of law,the other is why we should study Mac Cormick's institutional theory of law.In the context of anglo-american legal philosophy,“institutional legal positivism” together with “inclusive legal positivism”and “exclusive legal positivism” constitute a tripartite situation of post-Hart's legal positivism.Mac Cormick's institutional theory of law is one of the most influential.In addition,this part also reviews the possible significance of the institutional theory of law and the research progress at home and abroad systematically.Chapter one makes a systematic investigation of the tradition regarding legal institutionalism,and defines the research scope of this paper on the the analysis of similarities and differences between Ota Weinberger and Mac Cormick's theory of institutional law.It shows that there exists a difference between old and new in the sphere of institutionalism of law.The old institutionalism,in a sense of sociology,defines the law as institution as social order and organizations,while the new institutionalism which is based on the theory of the institutional fact is aimed to“present a socially realistic development of normativism” and has some commons within the ontology recommendations of institutional fact,methodology pluralism and the place of practical reason.However,there also exist some differences as following:a formal and finalistic theory of action vs informal speech acts,the logical theories of practical reasoning vs the theory of rationality of practical reason,the normative conception of institutions vs the conventional conception of institutions,the attitude of positivism vs the attitude of post-positivism.During the processes of more than one hundred year,Legal institutionism,within the dimensions of academic ways,theoretical resources and direction of development,has have converged the relationship of normativism and anti-normativism effectively,improved the theoretical basis and content,and enhanced continuously the theoretical autonomy of itself.As a benefit reference,the current domestic studies regarding legal instititution should focus more on “the normative development of empirical research” than before.Chapter two examines the key concept,Institutional fact,located in Mac Cormick's Institutional theory of law and reveals preliminarily the internal development trend to transcend institutional fact.Differentiating from John Searle's use-style of the concept of institutional fact in the sense of collective intention,status-function and constitutive rule,the concept in the eyes of institutional theory of law should be more clearly positioned in the level of speech act and rule.Mac Cormick's use of Institution on the surface is scattered into diversified meanings including institutional fact,system of three-types-rules,organizations and institutionalization,which might weaken its theoretical value.However,the concept of institutional facts in the sense of rules is still have the core position after the introduction of principle,the substantive meaning of institutional fact therefore has not been shaken.In the process to later institutional theory of law,through the joint action of informal speech act and convention,the institutional theory of law did not return to the old legal institutionalism.It is more firmly embedded in the dynamic process from informal normative order to institutional normative order,which is becoming the key bridge to understand the law as institutional normative order.According to this way,the concept of institutional fact has been adhered to the institutional theory of law from the beginning to the end and also be given a more important theoretical mission,we should not ignore the intrinsic value and should take institutional fact more seriously.Chapter three examines the early stage of Mac Cormick's institutional theory of law,that is,law as an institutional fact.This part discusses the theory of institution in the sense of rule,and compares Mac Cormick's theory of institutional rules with H.L.A.Hart's theory of social rule.Through this comparative study,we can find that the institutional theory of law is open to value such as principle and others from the beginning,and then examines a key basis for Mac Cormick's post-positivism shift,which is reflected in the logical priority of volitional internal point of view compared with cognitive internal point of view,so the normative problem emerges clearly from it.Because of that,the institutional theory of law is apt to be understood as normative legal positivism or ethical positivism,but this dissertation shows some different opinions about that discusses and explains why it is inappropriate.Chapter four examines the later stage of Mac Cormick's institutional theory of law,that is,the law as institutional normative order.In this part,we will examine in detail the more inclusive institutional theory of law established by explaining norm,normative order and institutionalization of normative order,and highlight the subtle content implied in the different stages of institutionalization and its sociological meaning.In addition,based on the guidance of the particular conception of legal positivism,we will look at the specific nature of the institutional theory of law in this time,including mandatory,factual and other content,as well as the relationship between law and morality,which is worthy of attention especially.It shows that Mac Cormick finally connects law and morality through normative order,and under the guidance of “extreme lawlessness(injustice)is not law”,morality is design to the position of the validity of law,Mac Cormick's theory is further defined as“post-positivism”.At last,this chapter also discuss the topic of constitutional state which is the reality integration of institutional normative order.Chapter five focuses on the role of practical reason in the institutional theory of law,the theoretical nature of post-positivism and Mac Cormick's views towards the natural law theory.Law and morality both belong to the category of practical reason and have the same structure,which enable Mac Cormick to establish a solid necessary relationship between them.In my opinion,practical reason is the potential clue in Mac Cormick's theoretical development of institutional law,but it only become clear accompanying with the theme of law as institutional normative order and got a reasonable explanation finally.Through this way,we can be more clearly aware of how jurists such as John Finnis,Robert Alexy,Immanuel Kant and David Hume shape Mac Cormick's view about practical reason and how it affect and shape the later stage of institutional theory of law.This part consists of the following: to reconcile Smith and Kant's efforts through Smithian Categorical Imperative which is be aimed to provide the fundamental explanation for post-positivism and its whole institutional theory of law,the basic proposition contained in post-positivism,and in which sense it is positivism and in which sense it is non-positivism.Through the discussion of this part,we complete the examination of Neil Mac Cormick's institutional theory of law finally.The part of conclusion reviews the clue of full explanation,and makes a further defend for Mac Cormick's institutional theory of law.Based on the common basis of institution or institutional,Mac Cormick's institutional theory of law goes through from fact to normative order,which has an important theoretical meaningness.In addition,how to carry out a coherent development between the institutional theory of law,the practical reason and the normativity of law will be the next theme.