The Institutional Theory Of Law Made Critical Amendments To Legal Positivism

In this paper, the research on institutional theory of law is closely linked to a book"An Institutional Theory of Law—New Approaches to Legal Positivism"written by British jurist Neil.MacCormick and Austrian jurist Ota.Weinberger.Which the institutional theory of law as a modified form of legal positivism appears on the theory stage is not accidental .Its inclusive study of theory of mind and eclectic method is remarkable,it not only opened up new horizons for people to understand the legal system and social issues ,but also represented a legal research trend ,and is worthy of our in-depth study and learn.Since the birth of legal positivism,it has continuously been accusing and critising from legal realism and natural law.In the multi-attack, the theory of legal positivism which developed by several generational masters gradually revealed its theoretical shortcomings, fell into a dilemma and couldn't sally. McCormick and Weinberger conceived their consciousness of the problem in such context of the theory ,and set up the Institutional Theory of law benefiting from the promotion the revival of practical philosophy produced. In order to find a new theory outlet for the old legal positivism in dilemma , the Institutional Theory of law made some critical amendments to the old legal positivism. It drew on the advantages of normativism and realism , considered the law as an institutional fact , thereby made a new contribution for the Theory of Social Fact. In the methodology, the Institutional Theory of law shows a tendency to pluralism, it integrated logic analysis, sociological methods and hermeneutic methods. In the relationship between law and morality ,they took a conprehensive attitude which the inclusive legal positivism had, and brought some ethical considerations into the legal system through practical reason, which not only remeded a drawback about the Separation Theory but also maintained the distance to the natural law, finally surpassed positivism and the natural law.Where there is theory ,there is argument, so the Institutional theory of law also aroused several arguments.Some critics suggested that the integrated strategy adopted in the research of the institutional theory of law has drifted off or even represents a complete departure from the basic position of legal positivism. So what is the connection between the institutional theory of law and the legal positivism? Is the former a modified form of the latter ,or a kind of betrayal? This thesis aims to probe into the interal connection between them ,and to get a correct understanding and proper theoritical position of the institutional theories of law. Though the institutional theories of law borrom some knowledge from the realism and natural law, it still develops its theory on the foundation of law positivism. To be specific, with its solid foundation of law positivism, the institutional theories of law carris forward some good traditions of the new analytical jurisprudence and clearly keeps a distance from the natural law. Thus, the institutional theory of law possesses the basic characters of legal positivism and it is a modified form of legal positivism.