Law as Institutional Normative Order

Maksymilian Del Mar, Zenon Bankowski

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317107705
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

MacCormick's `Institutions of Law' is the culmination of a lifetime's work in legal theory by one of the world's most respected legal theorists. Featuring an impressive collection of contributions from well-known legal theorists from around the world, all of whom are familiar with MacCormick's work, this collection provides a cutting edge account of the book's significance.

Chapter 1
Law as Institutional Normative Order: An Introduction

Maksymilian Del Mar

On 7 and 8 December 2007, a group of legal theorists got together to celebrate, but also critically discuss, Neil MacCormick’s latest book, arguably his magnum opus, Institutions of Law: An Essay in Legal Theory (MacCormick 2007). This collection is a direct result of that meeting, which was generously sponsored by the Leverhulme Trust, and held at the School of Law, University of Edinburgh.1 There had been a previous occasion, and also a previous collection (see Bankowski and MacLean 2006), where a chapter of MacCormick’s earlier Rhetoric and the Rule of Law (MacCormick 2005) was discussed, but the publication of this book was clearly an event that merited its own careful attention.

Institutions of Law is the third book in a series of four books under the title Law, State and Practical Reason. The first book was Questioning Sovereignty (MacCormick 1999), and was followed by Rhetoric and the Rule of Law (MacCormick 2005). The series will be completed with Practical Reason in Law and Morality (MacCormick 2009). Whereas the first, second and fourth all contain important elements of MacCormick’s legal theory (including his very significant revision, in the second of the above volumes, of his classic Legal Reasoning and Legal Theory, MacCormick 1978), they are also important contributions to political and moral philosophy, which leaves Institutions of Law as MacCormick’s most consistent and most ambitious statement of his legal theory.

The date of the meeting that led to this collection was significant for two other reasons. The first of these was that 2007 marked the three hundredth anniversary of the School of Law at the University of Edinburgh. This anniversary, in turn, was tied to the establishment of the Regius Professorship in Public Law, and the Law of Nature and Nations, which was, for thirty-six years, the Chair held by Neil MacCormick. The second reason that 2007 was special was that early in the following year (2008) MacCormick was due to retire, becoming Emeritus Regius Professor, his chair to be taken up by Neil Walker. The meeting in 2007, then, was also an occasion to look back at a lifetime’s contribution of a person who had given so much, not only to legal theory, and not only to political life (MacCormick was a Member of the European Parliament from 1999 to 2004), but also to academic life as an administrator, colleague and teacher.

However, as friendly as it is, and as much as it expresses the editors’ and contributors’ most sincere and heartfelt gratitude to MacCormick for the book’s contribution to legal theory, this collection is not an exercise in hagiography. None of the contributors have refrained from criticism where they thought it was due. Each has taken his or her own considerable experience and expertise in legal theory to offer improvements or suggest new paths. That alone is a testament to MacCormick’s dedication to the discipline of legal theory, and his relentless encouragement of alternative views. Indeed, MacCormick’s intellectual leadership of the Edinburgh Law School has been characterised by exactly that unique mix of responsibility and openness. In all thirty-six years, he never once set out to impose his own vision on others; nor did he attempt to attract disciples. Rather, he set out to offer the best account he could of his own view, engaged with others in debate (often by way of anecdotes, and never without a great deal of humour), continued to read and comment generously on the work of others, and encouraged all of us to strive to meet ever-more demanding standards of scholarship.

The aims of this introduction are two-fold. First, a brief discussion is offered of some of the elements of the first four chapters of Institutions of Law. This is partly because these chapters comprise the philosophically most robust part of the book, and partly because many aspects of the other twelve chapters are covered in the contributions to this volume. Having provided such a discussion, the introduction then goes on to outline some of the themes pursued by the contributors to this volume and to summarise the basic features of their individual pieces.

1. Norms, norm-users and normative orders

In his earlier and justly famous work with Ota Weinberger (MacCormick and Weinberger 1986), MacCormick’s legal theory rested on a distinction between brute and institutional facts. It will be useful to begin with this distinction because even though it is retained in Institutions of Law, and continues to play an important role, it is arguably surpassed in significance by another two sets of distinctions, i.e., between norm-users and norm-givers on the one hand, and normative orders and institutionalised normative orders on the other.

The distinction between brute and institutional facts is that brute facts are ‘sheer physical facts’ (MacCormick 2007, 11), while institutional facts are ones ‘that depend on the interpretation of things, events, and pieces of behaviour by reference to some normative framework’ (MacCormick 2007, 11). The key move from seeing something as an institutional fact, rather than a brute one – as in the move from seeing a piece of colourful plastic and recognising it is a credit card – is enabled, indeed presupposes, a ‘body of legal or other rules’ (MacCormick 2007, 11), e.g., in the above case, the rules concerning consumer credit. Without these rules, MacCormick says, ‘the physical object would lack or lose its current meaning. Interpretation of the things and their use in the light of the relevant rules is what makes such physical objects have the meaning they have’ (MacCormick 2007, 11–12). Recognising institutional facts, then, is a method for revealing the ontology of law, and thus also, though no doubt somewhat imperfectly, the ‘omnipresent and inherent elements of social reality’ (MacCormick 2007, 12).

In Institutions of Law, MacCormick does not wish to undermine the centrality of language or indeed the social reality it constructs, but, via the concepts of norm-users and normative orders, he does situate our picture of law on a different foundation. The opening chapter of the book contains a discussion of the practice of queuing, which MacCormick uses to illustrate these concepts. The practice of forming a queue, he says, ‘occurs very frequently in the everyday experience of contemporary human beings’ (MacCormick 2007, 14). This common experience is orderly, at least to the extent that people ‘take their turn’ (MacCormick 2007, 14). Of course, queuing need not work perfectly: either because ‘there may always be somebody with brass neck enough to jump the queue’ or because ‘it is sometimes all right to go to the head of the line without waiting your turn’ (e.g., in cases of medical emergency) (MacCormick 2007, 14). Nevertheless, even if it may not work perfectly, ‘there is some minimum threshold of compliance below which the practice would be unsustainable’ (MacCormick 2007, 14):

It would be literally impossible to be the only person that ‘takes her turn’ because ‘turns’ require a mutually co-ordinated practice of two or more. When a substantial majority of potential competitors for a certain opportunity fails to acknowledge turn-taking, it amounts to pointless self-abnegation if one or a few act as though most others were ready to take their turn. (MacCormick 2007, 14)

From this it follows, says MacCormick, that ‘turn-taking or queuing is … normative’ (MacCormick 2007, 15):

For where there is a queue for something you want, you ought to take your turn in it, and people who do take their turn do so because in their opinion that is what one ought to do – that is, ought to do in the given context. Such action-guiding ‘ought’ alerts us to the presence of some kind of norms, and to the normative character of the opinions that people hold in such a setting. (MacCormick 2007, 15)

The practice of queuing, then, is normative, but it is also a kind of normative order. ‘People’s positioning in a queue,’ says MacCormick, ‘is ordered, not random’ (MacCormick 2007, 16). But this is not an order that can be studied ‘“externally” and reported statistically’; it is a ‘“normative order” because, or to the extent that, one can account for it by reference to the fact that actors are guiding what they do by reference to an opinion concerning what they and others ought to do’ (MacCormick 2007, 16). The ‘result’, says MacCormick, ‘is a kind of common action by mutually aware participants’ (MacCormick 2007, 16).

Importantly, although MacCormick acknowledges that ‘there can be normative order without explicitly formulated norms’ (MacCormick 2007, 18), he continues to explain normative order as the functioning of implicit norms. ‘People know how to queue’, he says ‘and can tell cases of queue-jumping, and protest about them, even if they have never articulated exactly what their governing norm is’ (MacCormick 2007, 15). What explains this phenomenon is that ‘implicit norms are in fact largely observed and respected, without any other element of supervision, direction or enforcement than that constituted by a pressure of common (not necessarily either universal or identically expressed) normative opinion among those who interact with each other’ (MacCormick 2007, 18).

Interestingly, then, though he posits the possibility of a stratum of social behaviour that need not rely on pre-articulated norms, MacCormick nevertheless feels tempted to explain the order as one governed by mutual awareness of an implicit norm (or norms). Arguably, providing such an explanation allows for a smoother transition to the articulation of rules of conduct for the behaviour in question. It is a smoother transition because those rules can now be represented not as imposed from above, but as, in some sense, emerging from the practice of a normative order. In such a picture, those rules are an attempt, no doubt imperfect, and no doubt appearing in a formulation that not everyone might agree with, to make explicit the implicit norm or norms that norm-users had been following all along, though previously without the need for their articulation. The transition does not always occur – as MacCormick points out, ‘normative order can exist in some cultural and social settings on the basis simply of mutual belief and inexplicit norms with overlapping mutual understanding and interpretation’ (MacCormick 2007, 19). But sometimes it does become necessary to avoid ‘problems of a kind apparently endemic in informal orders’ (MacCormick 2007, 24) ‘by resorting to the issuance of expressly articulated norms, making explicit what is to be done or decided in expressly foreseen circumstances’ (MacCormick 2007, 14).

The difficulties MacCormick is grappling with here are at the heart of legal theory, as well as in many of the social sciences. On the one hand, we have this huge invisible ontology of institutional facts (i.e., the world of legal representations, managed, but not ruled over, by officials); on the other, we have people with their everyday activities, interactions, relations and practices. Providing an account of the relations between the two has been food for thought for a long time. Should we give explanatory priority to the representations themselves – i.e., is it they that constitute and regulate social life? Are our actions guided, more or less consciously, by these representations? Or, should we prioritise everyday activities, practices, interactions, relations and practices, which may at times rely on or manipulate representations, but which remain independent and autonomous, and which are subject to post factum praise or blame? Are these representations, then, only ever a significant reality for officials who are entrusted with them and under a duty to evaluate the behaviour of citizens only by reference to them?

One outstanding issue in MacCormick’s suggestion that human beings are, at bottom, norm-users (and certainly before they are norm-givers), is how to account for the ‘mutual understanding and interpretation’ that is said to constitute the content of social normativity. Is the suggestion that we act with such implicit norms in mind – deliberating as to what is appropriate based on the expectation that everyone else will comply with these norms? Or is the suggestion that we somehow feel what is appropriate, and it is only when things go wrong, when something disrupts the usual run of expectations, that we begin to reflect on our practices, and perhaps, if necessary, attempt to articulate norms that are to be used in evaluating the behaviour that goes on in such practices in the future? In other words, can we describe our behaviour as a matter of rule-following, and our activities as rule-governed or as regulated by rules, even if there is no fact of the matter, at any one time, as to which rule we are following, or no fact of the matter about which rules we are being governed or regulated by?

This issue is not a matter, or at least not merely a matter, of articulating how much action is conducted under the conscious influence of institutional facts. The issue is deeper. The issue is whether or not our everyday social conduct can be described by reference to institutional facts, legal representations, implicit norms, or constitutive rules. More generally, the issue is the familiar one of the problem of the relationship between theory and practice.

The problem of the relationship between representations and reality, and between theory and practice, rears its head in another guise in Institutions of Law, namely in the gap between rules and habits. MacCormick tackles this problem in Chapter 4. His principal strategy is to incorporate the role of habits in his theory of law as institutional normative order by arguing that ‘institutionalised legal orders depend on habits about rules, that is, on habitual references in some contexts to special sorts of text like those in the statute book and those in law reports’ (MacCormick 2007, 69). MacCormick elaborates on this as follows:

This involves the maintenance of a standing practical attitude towards institutionally established rule-texts … when these are cited and brought to attention as relevant to some context. … The habit or practical disposition of personnel engaged in legal work must include a disposition to give respect to and seek respect for any relevant provisions found in the texts of valid statutes and binding precedents, read in the light of the principles and values to which they give expression. (MacCormick 2007, 69)

Having acknowledged such a role for habits, MacCormick goes on to recognise that there are two kinds of gap between habits and law (the latter conceived of as institutionalised normative order). The first is that knowledge of the law on the books does not capture the knowledge and, equally, respect of the law in practice: thus, the success of lawyers in practice ‘derives from a great deal more practical knowledge, know-how, and wisdom than could be gleaned from however voluminous a grasp of the whole body of statute law, whether or not supplemented with voracious reading of cases and precedents’ (MacCormick 2007, 71). The second gap is the efficacy gap, namely, that:

However legal professionals and legal officials negotiate their way around the law, it is very much an open question how much of the official law is any part of the working consciousness of laypersons. It is also questionable to what extent their sense of what is right and proper depends on, and how far it diverges from, what the official law enjoins either in the sense of abstract texts or in the mediated form filtered through professional and official practice. (MacCormick 2007, 71)

MacCormick addresses the difficulties arising from these gaps by pointing out that they are not always as large as we may think. ‘There is,’ he insists, ‘a large conceptual framework [provided by law] which is available to people to appeal to, and to which they do frequently appeal’ (MacCormick 2007, 71). People generally know they have rights, he says, and they know there are things that are crimes, and they can generally discern their own belongings from those of others. Further, states increasingly acknowledge ‘international standards of acceptable conduct’, and corporations ‘acknowledge legal conditions for recognition of corporate activity wherever they engage in trade’ (MacCormick 2007, 72). Finally, says MacCormick, there is such a thing as a ‘civil society’ – such that ‘civility can obtain among persons who are relative [or complete] strangers to each other’ (MacCormick 2007, 72). All these elements encourage us to ‘consider whether [our] lived experience is not the best evidence [we] could have that law is at work to some reasonable extent in the state [we] live in’ (MacCormick 2007, 74).

Again, the difficulties MacCormick is facing here are at the forefront of legal theory and the social sciences. H.L.A. Hart suggested that we recognise that at the foundation of all legal systems were social conventions. He left the task of characterising those social conventions to others, and legal theorists have since looked to philosophers, such as David Lewis, Michael Bratman and Robert Brandom, for aid in articulating the nature of social normativity. However, Lewis, Bratman and Brandom all tend to require the exercise of rationality, often deliberative and self-conscious, and sometimes in the name of liberation from traditional ways of life. Understanding ourselves, and requiring that laws and legal systems treat us, as capable of exercising practical reasonableness (including the capacity to criticise the status quo and lobby for change) is important: if anything, it helps thwart the imposition of laws that have no respect for the freedom and dignity of persons. However, what this approach makes difficult is understanding precisely that sense of traditionality, i.e., that which is taken for granted, tacit, and operating below the level of conscious deliberation. Worse, such an approach may define that sense of traditionally, which is probably more pervasive and tenacious than we realise, out of contention. To do so is dangerous, for it may make us think that we can, at any one time, be conscious of all that which influences our action. Although we need the confidence that comes with our belief in our capacity for rationality, we also need the modesty, and potential for alertness and sensitivity, that comes, or at least may come, with recognising we are always influenced more than we can, at any one time, be aware of or be critical about.

Providing an account of social normativity that takes that sense of traditionality seriously is clearly outside the scope of an introduction. However, what can be said about the prospects of such an account is that even if it were to successfully overcome the theoretician’s prejudice to self-conscious deliberation by reference to representations, it would still leave open the question of the relationship between social normativity and representations, and theory and practice. We would still have to ask: at what point do we reach into ourselves, and look upon ourselves and our practices as objects of our own critical attention? What goes on when we do so? And how is such reflection linked to action, if at all?

Happily, it is these devilishly tricky questions, amongst others, that are dealt with in MacCormick’s fourth and final volume in his magisterial series. Whatever we will think of the answers, there is no doubt that Practical Reason in Law and Morality (MacCormick 2009) will offer, just as Institutions of Law has, plenty of stimulus and ample room for discussion and debate. In the meantime, we can conclude these brief comments can be concluded by noting that we do not think that the answers to these questions need not affect the explanatory power of MacCormick’s definition of law as institutional normative order, which is presented with such clarity and gusto in Institutions of Law. It is now time to highlight some of the themes and features of the individual responses, collected in this volume, to that definition and its exposition.

2. Themes and features of the contributions

This collection is divided into five parts. The first, containing contributions from William Twining, Frederick Schauer and Vittorio Villa, considers the importance, explanatory limitations and genealogy of MacCormick’s concept of law as institutional normative order. The second, with pieces from Massimo La Torre, Victor Tadros, and Jaap Hage, turns more specifically to the nature of institutions and laws, as well as to the overlap between the treatment of these in legal and political theory. The third, with pieces by Nils Jareborg and Magnus Ulväng, is focused on criminal law. The fourth, which includes chapters from Andrew Halpin and Julie Dickson, focuses on the contribution MacCormick makes to the methodology of jurisprudence. Finally, the fifth part contains a reply to the chapters from MacCormick, which also includes a synopsis of the book ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• 1 Law as Institutional Normative Order: An Introduction
• PART I: CONCEPTS OF LAW
• PART II: INSTITUTIONS AND JUSTICE
• PART III: CRIMINAL LAW
• PART IV: THE METHODOLOGY OF JURISPRUDENCE
• PART V: REPLY
• Index