Contemporary Legal Philosophy: The Rediscovery of Practical Reason

Neil MacCormick

Journal of Law and Society, Vol. 10, No. 1. (Summer, 1983), pp. 1-18.

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 Contemporary Legal Philosophy:

the Rediscovery of Practical Reason?

There must have been occasions on which even - or especially - those

most actively engaged in philosophising about law have had doubts, not to
say (as in the case of the unfrocked parson in Decline and Fall) Doubts. In
their bluntest form the doubts concern whether there is any more need for
a philosophy of law than for a philosophy of bus-driving. Lawyers convey
houses, and bus drivers convey people. Both will do it regardless of any
philosophical fuss; law is what lawyers do and bus-driving is what bus
drivers do; by all means inquire into the sociology of the bargain-driving
and the bus-driving professionals, or of their impact (we hope not a literal
impact) upon the surrounding community; by all means line them up in
their respective places in the class-struggle (thereby securing a place in the
pantheon of critical law or critical transport) but do not delude yourself
that there is any useful or interesting job for philosophy in either case.
There being philosophical precedent of the highest authority for con-
futing imaginary doubt through real meditation, let me at least imagine
such a doubt as that adumbrated above and see if I can meditate it away.
This may prove an effective method for achieving my present appointed
task, namely to give a view - I shall not pretend to a thorough con-
spectus - of significant contemporary developments in the philosophy of
law. My view acknowledges it as one essential task of legal philosophy to
supply an epistemology of law, a theory, that is, as to the possibility of
genuine knowledge in the legal sphere. But this is not the only task.
Another, which grows out of the epistemological task, is to elucidate the
nature and working of practical reason. Perhaps the most exciting develop-
ment of the past decade or so has been in the rediscovery of practical
reason, a recognition that general analyses of practical ieasoning, practical
discourse or practical reasonableness have much to offer to our under-
standing of the particular cases of law and legal activity. I shall try to show
this in what follows.
At the heart of the doubt raised in the opening paragraph is the notion of
law as behaviour, law as what lawyers do. If this is as obviously correct as it
sometimes seems, then indeed the understanding of law is surely best
furthered by simply empirical inquiries, and will only be befuddled (as
J. P. Gibbs has argued[l]) by the substitution of exercises in conceptual

tThis article is the fourth in a series being published in this journal which considers the

relationship of law and other disciplines.

*Regias Professor of Public Law, University of Edinburgh.

analysis for the necessary patient and painstaking investigation of the facts.
O n reflection, however, this is not so much a ground for doubting the need
for a philosophy of law as one particular case of a legal philosophy. T h e
conception of law as behaviour is the defining tenet of those philosophies of
law to which (perhaps confusingly) the name "realist" has been attached.
In its toughest, Scandinavian, version built upon Hagerstrom's work, such
a conception of law belongs in a set of ontological tenets according to
which belief in the existence of values, norms, and normative positions
such as "right" or "duty" is necessarily false; false because there is only one
world and that a material one. Such beliefs have causes and have effects,
available and calling for empirical study; but as to their content, they d o
not even lack truth-value but are actually false.[2]
This epistemological theory walks necessarily in step with an ontological
theory; claims to knowledge of what is actually non-existent are necessarily
groundless claims, and a theory of what there is thus sets limits on, without
fully determining, a theory of knowledge; in turn attempts t o define and
then to acquire possible knowledge lead into problems of method. The
issue may be characterised as "empiricism - for and against"; but even
this is in a way misleading, since what is in issue is at least as much the
question what are genuine modes of observation, linked t o the question
what is available t o be in relevant modes observed.
Even to pursue the theme this far is to be forced to recognise the implicit
falsehood in the caricature opposition of philosophical and sociological
inquiry set u p in jest in my opening paragraph. For what is obvious is that
the problems (of ontology, of epistemology, of methodology) which flow
from any questioning of the conception of law as behaviour and its
underpinning presuppositions are not different problems for, but problems
common to, the philosophy of law, the sociology of law and legal
scholarship itself. What is more, though by dictionary definition theories of
what there is, how it is knowable and how to pursue knowledge of it are
"philosophical" theories. this can in no sense justify any special arrogation
of empire over them to any one group of soi-disant professionals - phil-
osophy is an activity, not a trade. It follows, and is also true, that the
greatest of mistakes is to suppose that crucial intellectual differences divide
those who profess jurisprudence or the philosophy of law from those who
profess either sociology of law or legal scholarship. The rivalries as
between different ontological (and, as we shall see, deontological) assump-
tions or theories are rivalries which include in grouped warring camps sets
of "philosophers", "sociologists" and "lawyers" internally differentiated
not by differences of theory but by differences of focus of study, externally
differentiated from other like sets by deep differences of deep theory.
T o have said all this has been to have adopted by implication a
substantial part of Richard Tur's recently stated thesis as to the essentially
epistemological task of jurisprudence.[3] Basic to jurisprudence as a taught
subject in law curricula. he argued, is the engagement of students in the
inquiry whether there is legal knowledge and, if there is, what makes it
possible and what it is knowledge of. (It should not be thought that such a
question has no practical significance. If there is no such thing as legal
knowledge, then once this truth is sufficiently disseminated, it will become
a form of fraud for anyone to continue to conduct examinations in law on
the basis that people can fail the exam for giving wrong answers; or if what
is knowable in the field demarcated as "law" turns out to be a great deal
different than traditional legal scholarship has supposed, the old books had
better be burnt and a new start made. We might recall here that just this
was the aim of "American realists", who as academic lawyers belong at any
rate broadly in the same camp as the Scandinavians occupy philosophically
and the judicial behaviouralists sociologically).[4]
Tur himself both owes a freely acknowledged debt to Kelsen in his case
for jurisprudence as epistemology of law, and is, along with J. W. Harris
and Alida Wilson, a notable upholder of the Kelsenian tradition in
contemporary juristic debate in the U.K.[5] The special significance of that
tradition is the way in which it represents the possibility of a genuine and
objectively scientific study of norms, such that within the genus of the
normative one can postulate specific differences for identifying state legal
orders, in terms of dynamic character, monopolistic authorisation of
coercive sanctions, a defined spatial sphere of validity, and relatively
centralised organisation within the given spatial sphere. The Kelsenian
project of elucidating the presuppositions required for any objective
cognition of legal norms has been carried a step further by Harris's
proposal to abandon the conception of a Grundnorm as the ultimate non-
positive norm of a system of positive norms, reclassifying it as a "basic fiat"
for the pursuit of legal science.[6] His point is that what we here have to do
with is a methodological postulate for elaborating a certain form of
knowledge, not a suprapositive norm for establishing a political consti-
tution.
Not least among the merits of this proposal is that it exhibits the full
fallaciousness of the fallacy so well beloved at least of jurisprudence
finalists that Grundnorm and "rule of recognition" are more or less the
same idea put in different languages. Recent scholarship having made the
anglophone juristic community well aware of the true nature of Kelsen's
theory as to the transcendental presuppositions required for knowledge
claims in the world of the ought, we are in a position to appreciate that the
rule of recognition plays no such part in Hartian theory as that of the
Grundnorm in Kelsenian. It does not follow, however, that there is no
functional analogue in Hartian theory for the Grundnorm, understood as
that which grounds the possibility of objectively meaningful and veridical
normative discourse.
It is perhaps useful to recall how Karl Olivecrona, grounding himself in
the realism of Hagerstrom, dismissed as a "great mystery" Kelsen's
postulation of a world of the ought over and beyond the world of the is.[7]
If the principle of cause and effect is the sole governing principle of every
objective science, paralleled by no "principle of imputation";[8] then
indeed a conception of law as behaviour is the only one acceptable within
the temple of science. This being the realist riposte to Kelsen's ambition
for a "normative science", we ought to consider Hart's riposte to realism.
What then was Hart's rejoinder to conceptions of law as behaviour? It was,
of course, that such conceptions were vitiated by adherence to a purely
external point of view in the study of legal and social rules; this is
unacceptable because it necessarily misses the vital "internal aspect" of our
response to rules.[9] From the standpoint of a linguistic analysis of human
normative discourse, one cannot but see such discourse as involving and
expressing standing common attitudes to conduct held by human beings ar
members of social groups constituted by their common adherence to
common standards of conduct and criticism of conduct.
One interpretation of this view (J. W. Harris's) is that it is a more
refined version of behaviourism, correlating the linguistic with the othel
overt behaviour of human beings.[lO] In my opinion (argued for else-
where) this is a misinterpretation of the view.[ll] At any rate, the Hartian
theory of the "internal aspect" of rules can and should be taken as leading
on into a "hermeneutic"[l2] or, as Anthony Kronman calls it in his recent
study of Max Weber, an "exegetical"[l3] approach to the understanding of
normative discourse. The point is that we must attend to the data of our
own and others' imputed consciousness in making sense of "the world of
the ought". On this view. conceptual inquiries into normative terms or
concepts and the uses we make of them stand not in contrast with, but as a
variety of, empirical inquiry. That the only available data are immediately
available data revealed by our self-awareness as conscious acting subjects
engaged in intelligible interaction with other like subjects does not make
them less respectable or genuine than those amassed by "external"
observation.[l4].
In this view. the presupposition under which normative discourse is
intelligible is that human beings are capable of consciously orienting their
conduct towards fulfilment of preconceived patterns of conduct for whose
observance they have a standing attitude of serious preference. The
possibility of there being true or false normative statements such as ones
about people's rights or duties or the wrongs they have done is a possibility
conditioned by the existence of common or shared standards among
members of groups with attitudes which remain relatively constant in time.
The truth-conditions of the statements are presupposed, but not asserted,
in the making or checking of the statements. Hence there can be genuine
knowledge of and about norms, but not as timeless and universal prescrip-
tions of the right, simply as local and temporal elements in the communal
life of human groups or "societies". The case of a state legal system is
simply a special case involving rules about rules about conduct as well as
rules about conduct, the latter being "valid" (this itself a normative
predicate) in terms of the former.[l5]
The upshot of the Kelsenian and the Hartian theses as to the possibility
of genuine knowledge of norms as well as about norms is much the same
despite all the serious differences of philosophical pedigree and method in
the establishment of the theses. Both establish the possibility of judging
what is legally right or legally obligatory subject to the caveat that every
such judgment has to be relativised as to time, place and relevant population.
Both deny that such judgments require or presuppose any judgment of
what is morally right, and Kelsen denies the possibility of any objective
judgment in the latter case while Hart remains non-committal on that
point. [lb]
The general theories, sharing the form of positivism which they do share,
have of course formed the background for a great deal of more detailed
analytical studies of terms and concepts in use among lawyers.[l7] They
have separately led to separate and mutually independent representation
of legal facts as "institutional factsn,[18] and to complementary analyses of
legal institutions, the form of which is also illuminating for the understand-
ing of social and moral institutions on a wider front.[l9] Such work has also
continued the tradition of both drawing on and feeding back to the
philosophy of language.[20] And at the same time there have been
important critical refinements of the basic theories, most notably through
the work of Joseph Raz in the discovery that a theory of norms calls both
for the elucidation of principles for individuation of norms,[21] and a
fortiori for a clearer specification of the grounds for distinguishing different
types of norm according to their normative rather than their supposed or
asserted social functions. [22]
The idea of a "normative function" is explained by reference to formal
aspects of practical reason, that is to say, by reference to the types of
reasons which norms constitute as elements in practical deliberation. Of
the greatest interest in this line of inquiry is Raz's suggestion that, as well
as having first order reasons for acting in certain ways, we also have second
order reasons - reasons for acting or not acting upon other reasons. To
the latter class belong so-called "exclusionary reasons", namely, reasons
for excluding from deliberation some range of otherwise sound reasons
bearing upon present options. A case in point is that of a promise to do
something or other. At the time for keeping the promise, there may well be
reasons for not performing the act as promised, which on their own merit
would outweigh whatever reasons (apart from the promise) now tell in
favour of doing that act. But the "obligatory" character of promise-keeping
means that the given balance of first-order reasons is simply excluded from
relevant deliberation while at the same time amounting to a sufficient first-
order reason for acting.1231
It remains controversial whether this analysis applied to concepts such as
"rule" or "obligation" or "power" is as convincing as it is intricate.[24] But
it has (like some other attempts) shifted the discussion of concepts like
obligation on to the ground where they belong within a hermeneutic[25]
study concerned with the kinds of reasons one is addressing when (for
example) one contemplates an actual or supposed obligation to act, as
distinct from those cases in which one is deliberating, under no constraint
of obligation, about what it is best to do all things considered. This cannot
but be more satisfactory than the oddly "external" analysis of obligation
offered by Hart, in terms of the existence of "serious social pressure" as
definitive of "rules of obligation".[26]
The most recent development of this line of argument by Raz has
applied it to the problem of the conceptual demarcation of "law" from
other things.[27] What is the difference between there being some sound
and relevant reasons why some line of conduct should be legally obligatory
and its actually being so? A possible answer is that while we are
considering whether there should be such and such an obligation, we
remain at a purely deliberative phase of practical discourse. A character-
istic of legislative and judicial processes however is that they provide for a
transition from "deliberative" to "executive" stages. Once an authoritative
decision is taken that such and such is (or is not) obligatory, then pro loco
et tempore, further deliberation is excluded or overridden from having
direct practical bearing. Characteristically, the appeal to law, to legal rights
or duties, is an appeal to that which has been so decided or settled. Of
course, there may still be dispute or deliberation as to the proper
interpretation or application of what has been settled and a variety of
reasons may be canvassed for or against one or another interpretation
(reasons of the same kind as must come into the account where there is an
absence of settled law relevant to a problem within an established
jutisdiction). But there is a significant distinction within our practical
reasoning as between what has already been decided and what reasons
there are for deciding one way or the other points as yet unsettled.
Whether or not this argument has sufficient power to sustain the
traditional positivistic thesis as to the conceptual independence of law from
morality, it is unquestionably the best defence yet offered for that thesis. It
is also of value in establishing a ground independent of the actual or
supposed concerns of professional lawyers for differentiating those among
lawyers' concerns which are concerns about law from those that are not.
The law is, in one trivial sense, what lawyers do; but not all that lawyers or
judges do is the law, and some of it is quite as possibly illegal as much of it
is manifestly non-legal.
Raz's general thesis about the reasons why practical reasoners some-
times have reason for resort to laws and rules which exclude or restrict
open ended deliberation is strikingly and quite independently corroborated
by Robert Alexy's "Theorie der juristischen Argumentation". [28] Drawing
widely from British and American moral philosophy in the analytic style,
from Perelman's studies in rhetoric, from Habermas's theory of discourse
and from other modern German philosophies, Alexy sets himself to
establish as exhaustively as possible the rules and forms of argument which
can be postulated as governing practical discourse in all its forms. The
upshot is that we can establish a set of governing conditions for the
"discourses" to which reasonable appeal may be made in order to justify
actions or decisions of any sort. To satisfy these conditions is to accept as
excluded many physical and psychological possibilities of action or deci-
sion - such are "discursively impossible"; the trouble. however, is that
too little is excluded. In any given situation of choice, there may be a
plurality of options open, all of which are "discursively possible" or
justifiable by rational argument.[29]
This being so, it follows that reasonable persons have reason to wish for
the existence of an authoritative process of decision making both as to
common rules of social conduct and as to the right application of these
rules; in short they have reason to favour the existence of a legal system,
provided that it is constituted in a "discursively possible" (rationally
justifiable) way, allowing, for example. for democratic election of the
legislature, independence of judiciary from executive, and so forth.[30]
More explicitly than other current theories of legal reasoning, Alexy thus
establishes the thesis (he calls it the Sonderfallthese) that legal reasoning
both in the legislative and a fortiori in the adjudicative phases is (when
properly conducted) simply a special case of general practical reason-
ing.[31] Among the special characteristics of legal reasoning is that within
it grounds and procedures of argument are more restricted and clearly
defined than in general practical discourse, hence it can more frequently
yield a single determinate outcome to a practical dilemma than the latter.
Even so, there remain hard cases in which more than one solution may be
"discursively possible" even within the special constraints of legal dis-
course; in such cases one is inevitably thrown back upon the resources of
general practical discourse. Although it is proper for, or rather incumbent
on, courts and advocates to proceed into general practical discourse when
the resources of specifically legal discourse fail them, this would not justify
claiming general practical discourse as a part of legal discourse or of law;
for this would invert the genuslspecies relationship.[32] The justified
demand that advocates and judges observe the general requirements of
general practical discourse, even as a matter of fulfilling the duties of their
legal station, does not rest upon the assumption that these requirements
are themselves legal requirements (if they were, we might suppose them
subject to being changed legislatively).
We might take this as indicating a ground of objection to two of the most
controversial points in Ronald Dworkin's approach to legal theory, namely
to his claim that in a developed legal system there are always adequate
materials fully to justify a final decision of any litigable question[33] and his
related claim that for every legal question there is a right answer (not
excluding the remote possibility of a "tie judgmentM[34]).As to the first of
these claims, it can be rejoined that it is true that there will always be
grounds and modes of argument which it will be proper for adjudicators
and advocates to deploy as justifying their favoured conclusion to a
disputed point of law, however hard the case; but that this does not close
the question whether there are serious reasons for restricting our concep-
tion of "law" to a restricted special class of those grounds and procedures
which are not common to all forms of reasonable practical discourse. As to
the second, if it is true that the special justifying reasons for establishing
specialised legal institutions and specialised procedures of discourse,
namely to avoid so far as may be the relative indeterminacy of general
practical discourse, then it cannot be assumed that there are single
determinate solutions uniquely right or reasonable for hard cases. This will
be so sometimes, for example, when canons of legal interpretation leave it
open that the decision to a case may legally be either d or not d, but when
one of these is unreasonable in terms of general practical discourse (was
that what the majority thought in Junior Books?[35]). But if general
practical discourse is in its nature less determinate than legal discourse (this
being the justifying ground, as distinct from the historical origin, of the
existence of specialised legal institutions), it cannot always be so. Some-
times choices must be made as between equally reasonable views. Here we
come into the realm of what John Farago well describes as "Intractable
Cases". [36]
In that light, one might be tempted to join Alexy with Raz as a defender
on the ramparts of legal positivism. This would not be so much wrong as
irrelevant. The fundamentally Kantian aspects of Alexy's subordination of
legal rationality to general practical rationality might in any event justify
the opposite conclusion. In this regard, his work is comparable with the
differently angled Kantian line stated with incomparable clarity in W. D.
Lamont's Law and the Moral Order,[37] which exhibits respect for the
form of law as foundational for reasonable moral judgment, positive law
being on the other hand essentially concerned to give concrete embodi-
ment to practical requirements of respect for persons.
Yet, as I say, the point is not so much wrong as irrelevant. For the
drawing of lines which enable us to differentiate state law from other
varieties of non-state law present even in and beyond "state-societies", to
say nothing of law in non-state societies,[38] and generally to differentiate
legal discourse in all its forms from non-legal is both a subordinate task to
that of understanding the concept of legality and in any event a task as
imperatively to be addressed by "natural lawyers" as by "positivists". In
fact, once the discussion is cast in terms of the place of law within a general
view of practical reason. it ceases to make any serious sense to suppose that
there is a choice to be made between being a "positivist" or a "natural
lawyer" (except as a kind of sentimental attachment to a given historical
tradition, rather like opting for Sabinianism or Proculianism) in terms of its
being a choice which will determine some crucial differentiation of one's
legal theory, granting revelation as to the nature of law and as to whether
or not unjust laws count as law.
In fact, not the least significant aspect of the remarkable impact Ronald
Dworkin's work has had upon the recent pursuit of legal philosophy has
been in effect and substance to place questions about practical reasoning in
legal contexts at the head of the agenda. For the response to his critique of
Hartian jurisprudence with its stress upon the character of legal rules and
obligations as based in social practices[39] has necessarily been by way of a
refining of our understanding not only of the social but even more of the
practical character of the normative dimension of human thought. It may
or may not be sound to suppose that all legal or social principles concern
rights as distinct from policies which concern collective goals;[40] but it is
obviously imperative to an adequate testing of Dworkin's case to investi-
gate more fully our notion of what it is to have reasons of principle or
reasons of policy for the courses we propose whether in a context of state
law or of the law of (for example) a University, trade union or voluntary
association. Nor is Dworkin's the only model for critical evaluation in this
line: one may compare with it Robert Summers' investigation of the
relationship and competition between "goal reasons" and "rightness
reasons" as "reasons of substance" contrasted with "authority reasons" in
common law systems,[41] in respect of which a point open to speculation is
how either or both of Dworkin's and Summers' suggestions might be
compared with Max Weber on "formal" versus "substantive" rationality,
to which might be added the question whether in Weber himself the
distinction of "purpose rationality" and "value rationality" in conduct has
anything to offer in the way of further specifying a content for "substantive
rationality". [42]
It certainly cannot be adequate, as I once thought it was, to lump
together every appeal to general practical reasonableness or substantive
grounds of decision in hard cases under the category of "consequentialist
reasoning".[43] For as Bernard Rudden has shown, consequences are of
various sorts,[44] and it now seems that once we start trying to disentangle
logical from behavioural consequences and longer run outcomes of deci-
sions, we return to problems of evaluation in which "rightness reasons"
(or, perhaps, "value rationality") and "goal reasons" (or, perhaps, "pur-
pose rationality") remain locked in competition. And at this point special-
ist legal philosophical debate merges with the general debate among
political and legal philosophers about justice and about the general contest
betwen deontological and utilitarian theories of the right.[45]
It would be as wrong to exaggerate as to underplay the influence of
Dworkin in focussing discussion upon problems of practical reason;
indeed, in a sense it has been a side effect rather than an aim of the "Rights
Thesis" to have promoted this concern. A great deal of the other work here
discussed has taken shape quite independently of the Dworkinian enter-
prise and has in fact addressed the topic of practical reason more directly
than Dworkin's has. It has had other fore-runners in Chaim Perelman[46]
and Joseph Esser[47] for example; and to the extent that it has in most
cases had Kantian overtones, whether direct, as in W. D . Lamont's case,
or mediated through Kelsenian thought as in other cases, it could be said to
have involved a rediscovery of Lon Fuller's theories on the formal
properties of legal order, as distinct from its instrumental character.[48]
The problem with a Kantian line of thought (and this problem Lamont at
least supposes to rest on a misunderstanding) is that one may conclude that
it tells us how to be rational in practical deliberation without showing
whether one should be so. One way of dealing with that would be to follow
John Finnis down the Thomist or Aristotelian line and to work forward
from the simple self-evidence of certain basic values as goods of human
existence.[49] If this can be so presented as to avoid J. L. Mackie's
problem of "queerness"[50] - an existential or ontological queerness
about the objective existence of values as such - then the answer can well
be as Finnis presents it; namely, that practical reasonableness is one basic
good among others (life, the pursuit of knowledge, sociability or friend-
ship, aesthetic experience, play and religion in Finnis's list) with the special
function of giving order and structure to our pursuit individually and
communally of whatever else is of value.[51]
To grant the first steps of that argument is to be convinced by the main
outline of what follows from it, though not necessarily with all the details of
the conclusions. That is, one will necessarily find that principles of practical
reasonableness generate conceptions (not necessarily exactly Finnis's ones)
of justice and the common good. And one will certainly find that the
plurality of incommensurable goods means that it is possible for more than
one individual or societal life-plan to be genuinely reasonable and soundly
adjusted to individual or common good. The plurality of reasonable
possibilities and the consequent need for determining upon one or another
of them thus generate within this as within Alexy's thesis the need for
allocation of authority both to common rules and at least to adjudicative
but also in complex social orders to executive and legislative organs of
communities. [52]
Where there are authoritative institutions of this sort there have to be
regulated procedures for the exercise of authority. What satisfies such
procedures is valid ("formally valid"); and validity is at least a necessary
condition for ascription of authority or obligatory character to purportedly
authoritative determinations of general or particular issues for decision.
Hence, although moral values supply the justifying reasons for the
existence or endorsement of procedures of validation, it is a standing risk
that the individuals in charge of such procedures may abuse them to the
detriment of moral values. Hence validity and moral value are not in this
theory (or, as Finnis shows, in most mainstream natural law theories)
either equivalent or concurrent conditions of each other. The validity of a
legal rule or decision hence may constitute a strong prima facie reason
in favour of obeying it; but it is never conclusive of that issue; the moral
disvalue of a rule or decision will not necessarily render it ipso jure null and
void.[53]
Again we discover the fatuity of caricature oppositions as between
natural law and legal positivism based upon a supposed conflict over the
legal status of unjust laws. In and of itself, that is on both views a non-
issue. The strength of the natural law tradition as represented by Finnis is
in its insistence that some valid laws can indeed be corruptions of law.[54]
They can be so in the sense of arising from an abuse of legal processes,
"abuse" being necessarily defined in terms of an essential aspiration of
genuine or "focal" legal enterprises towards realisation of a just and
reasonable social ordering in the common good.[55] Here must be noted in
parallel the aspirational character of the "inner morality of law", the "rule
of law" in a procedural sense, as delineated by Lon Fuller, of whose whole
corpus of work a re-evaluation by Robert Summers is shortly to ap-
pear.[56] It remains a contested issue whether an aspiration to justice is to
be treated as essential to or definitive of the legal enterprise in all its
manifestations, or is to be distinguished as a specially urgent demand
issued in the name of critical morality[57] and deriving its urgency from the
constant exposure of human beings to possible unjust exercises of the
power of modern states organised under and in the name of "law". But that
difference of opinion is relatively less urgent than the questions what is
unjust and where or how lines of resistance to injustice ought to be drawn.
On anyone's view, unjust things will be done in the name and forms of law,
and the critique of them is relatively little affected by resolving whether or
not these represent a corruption of law in its ideal essence or simply an
abuse of public power. The definitional view can indeed help judges to
second-guess legislatures as to the justice and thus the lawfulness of what
they propose; but that can be a two sided weapon where judicial wisdom is
not necessarily sounder than legislative. [58]
These my most recent assertions about the critical role of natural law
theory or the parallel exercises in "critical morality" offered by those
whose self-definition is as "legal positivists" may in turn provoke objection
from the standpoint of "critical lawn.[59] May it not be objected that the
key fact about legal philosophy in all its current modes is its uncritical
character? Can we not generalise to the whole of legal philosophy Karl-
Ludwig Kunz's attack upon analytical legal philosophy for being in its fruits
no better than a mode of legitimating under the title "law" (Recht with its
even more telling ambiguities) whatever is done under the name and
authority of a state?[60]
The most telling reply to this is by protest against arrogation of the term
"critical" solely to the ideological stance or group of stances adopted by
"critical theorists". One can play the arrogation of labels game in a variety
of ways. after all. Consider F. A . Hayek's distinction[61] between "critical
rationalism" and "constructivist rationalism", under which "critical theor-
ists" turn out to be uncritically and irrationally "constructivist". There is
much to be said for Hayek's view that, as with the development of a system
of common law, the role of reason in human affairs is best addressed to the
continual adjustment and correction and analogical development of an
inherited system of what he calls "rules of just conduct", a system which
was not and could never have been the product of a single designing
intelligence. The point about collective wisdom is that it is disseminated
among the collectivity and cannot be aggregated into a single programme
or package as constructivists would wish. The streng.th of this argument is,
of course, independent of the particular political proposals which Hayek
derives from it.
The same goes for Finnis's somewhat conservative implied judgment of
the by-and-large soundness of existing legal institutions in western demo-
cracies, as judged by his principles. Is this, if in error, in error because the
principles are unsound or because they are misapplied? If it is true for
example that there cannot be a "common good" in a society divided by
class,[62] then it must be true that the aspiration to Finnisian or Thomist
legality is incapable of fulfilment in a capitalist society. The same would be
true of the aspiration to fraternity built into the Rawlsian theory of justice,
and adopted by those who adapt Rawls to the purposes of a social
democratic conception of justice and critical morality .[63]
This, however, is the very question. How can "common goods" be
identified and squared with goods for the individuals who comprise a
community? No one answer to this question is intrinsically more "critical"
than any other; but what is to be criticised is a function of the answer given.
A philosophical concern with legality and with rights either descriptive1
analytical or normative/critical in thrust does not in itself pre-determine
that, nor should it.
The point is well taken in Tom Campbell's recent The Left and Rights,
where he faces up to the issue whether "rights" is intrinsically and
necessarily a bourgeois or capitalist concept and hence to be wholly
eschewed by socialist thinkers. His conclusion is to differentiate the
capitalist conception of the rights people have and the necessary means of
their fulfilment from a socialist conception, the latter being what he
commends. In his words:
Socialist rights are more positive, less dependent on the activation of the right-holder,
more directed towards the protection and furtherance of those concerns which express
the needs of active and creatively productive social beings than is the case with
capitalist rights. Socialist rights are more organisational than political in that they
inform the co-operative social effort rather than represent demands to be disputed and
traded-off against each other. They are devices to secure the benefits which can be
derived from harmonious communal living, not protections for the individual against
the predations of others.[64]
The ambition here stated to secure "harmonious communal living"
seems substantially the same as Finnis's "common good", nor is the stress
on the good of human sociability fundamentally different. The difference
lies in the conception of the rights which ought to be accorded to people in
order to secure such goals. That difference is in turn at least in part
explicable as a difference about social facts - about the kinds of relations
which obtain between persons in present-day non socialist societies and
about possibilities of other forms of community. Here yet again one arrives
at a point of necessary interlocking of philosophical and sociological
concerns.
But the point at which one arrives poses its own problem. Is the
possibility of different forms of society a matter to be determined by purely
speculative "factual" inquiry, or are forms of life in part constituted by the
modes of "practical discourse" in which humans can, and choose to,
engage? D o forms of life determine modes of discourse, or vice versa?[65]
Such a question, I think, poses an unreal alternative. As Zenon Bankowski
and David Nelken have pointed out in relation to my account of legal
reasoning, it is true that the sustenance of such a mode of reasoning as an
actual social practice depends upon the existence of a group of pro-
fessionals who practice it, and that those practitioners are or have been
socialised into the discourse which they practise.[66] The "form of life"
pre-existed and moulded its present practitioners who in turn sustain it.
One could not imagine it radically changed save by changing the form of
life. Yet in turn the possibility of change exists within the system, to the
extent that people see and show good reason for changing it. That every
form of practical reasoning has necessarily a social context does not show
that it cannot in turn be a cause of changes in the context. All it means is
that change will be incremental and substitutional rather than radically
revolutionary. Somewhat like Hayek, I am of the view that this is the
desirable process of change. I can be shown to be wrong in that, if I am
wrong, only by some appeal to practical reasons for greater and more
sudden change. And, if such reasons are offered, they will fall to be judged
by their soundness or weight, by the new form of life they offer me, not by
the form of life by which I suppose them to have been generated.
Finally, let it be asked whether judgment of the soundness or weight of
such reasons belongs within the scope of what is knowable. Are these
matters of faith and conviction, or matters of knowledge? Do practical
judgments in their character as such have truth value? Does reason in the
governance of will play the same role as reason in the governance of
speculative or factual inquiry? I cannot myself answer these questions. I
can see the attractiveness of the Finnisian view under which judgments of
absolute and relative value are capable of being true or false in their own
right as such. Yet I remain upon the whole more persuaded of the
alternative view that values are in the last resort functions of attitude rather
than objects of cognitive apprehension. That we can subject them to the
discipline of reason is not the same as supposing that they can be
established by reasoning. And so I tentatively conclude that the sphere of
normative knowledge is restricted more or less as legal positivists have
demarcated it; restricted, that is, to knowledge of and within socially
established norm-systems. Raz's line between matters decided at the
"executive" stage and matters still under deliberation is here the crucial
line. Law and laws are knowable as matters of "institutional fact" and not
otherwise. But they are understandable only within the broader perspec-
tive of a study of practical reasoning in all its stages, and capable of sound
implementation only under the guidance of practical reason. The phil-
osophy of law must include. but is not exhausted by, legal epistemology.
As this paper commenced with an imaginary doubt, so it concludes with
a real one. The real doubt is not about the value of a philosophy of law, but
is rather of the kind which is a spur to its continuing pursuit. One line of
inquiry to which it ought to give a stimulus is that of the study of reasoning
in matters of fact. Behind one's doubt as to the ontological standing of non-
positive norms and values perhaps lies an unstated contrast between the
certainty of factual knowledge and the more tentative character of evalu-
ation, with its consequential need for decisions in circumstances of
uncertainty. Especially in legal contexts, the standing of this background
assumption about facts needs further consideration.
It is not true that, in law at least, only questions of law have to be
decided, and decided on a judgment of the weight of non-demonstrative
arguments. Exactly the same goes for questions of fact and evidence.
There is less of a contrast than we are inclined to suppose. Just as we need
reasonable processes for authoritative rulings on law, so we need reason-
able processes for authoritative determinations about facts - or "truth
certifying procedures", as they have been called.[67] Recent controversies
about the nature of probabilistic reasoning in evidentiary matters (notably
among Sir Richard Eggleston, Jonathan Cohen and Glanville Williams)
are reminders of the difficulty and the controversial quality of this aspect
of reasoning.[68] As William Twining has rightly put it, we have to "take
facts seriously" too.[69] Does the necessary existence of social practices of
fact-certification lead to the conclusion that what we take to be reality is
only a social construct?[70] O r does the possibility that we should seriously
entertain that belief about "reality" as a true belief require us to suppose
that it either is or is not anchored in a real reality beyond all social
constructs? If so, it will be at best a qualified truth. As to this aspect of
reasoning, just as to practical reasoning, there is no feasible disentangle-
ment of philosophical and sociological inquiries or hypotheses.
In this paper I have attempted to survey some main lines of current work
in the philosophy of law. It seems to me that what is most exciting in recent
work has been the rediscovery of practical reason as a focal topic for the
philosophy of law. I have tried to show how work on it relates to and has
grown out of concern for essentially epistemological questions about the
possibility of and the limits on legal knowledge, and how it must be
complemented (and is, albeit in too small a degree complemented) by
reflection on fact-finding processes, and on the question whether these also
engage practical reason rather than being matters of pure speculation. This
view of the subject of course exhibits my own value judgment about that
which is most worthy of our attention. Of the reasonableness of the value
judgment, and thus of the principles for selection of the matters discussed,
I must leave it to others to judge.

NOTES A N D REFERENCES

[I] J . P. Gibbs, "Definitions of Law and Empirical Questions" (1968) 2 Law and Society
Rev. 429.
[2] For recent views of Hagerstrom, see N. E. Simmonds. "The Legal Philosophy of Axel
Hagerstrom" (1976) Jur. Rev. 210; G . D . MacCormack, "Hagerstrom on Rights and
Duties" (1971) Jur. Rev. 59; J. Bjarup, Reason, Emotion and Law; Studies in the
Philosophy of Axel Hagerstrorn (Ph.D. Thesis. University of Edinburgh, 1982).
[3] R . H . S. Tur, "What is Jurisprudence?" (1978) 28 Philosophical Quarterly 149; cf. N .
MacCormick. "On Analytical Jurisprudence", in Conceptions Contemporains du Droit
(ed. P. Trappe, Wiesbaden. 1982). 29-41.
14) Much the best recent account of the alms and assumptions of "American Realism" is
William Twining's Karl Llewellyn and the Realist Movement (London, 1973); for a good
account of "judicial behav~ouralism", see Lord Lloyd of Hampstead and M. D. A.
Freeman, A n Introduction to Jurisprudence (4th Edn., London, 1979) 472-5,542-63.
[5] See Tur, op. cit.; A . Wilson, "The Imperative Fallacy in Kelsen's Theory" (1981) 44
M L R 270: J . W. Harris, Law and Legal Science (Oxford. 1979). As Kelsenians, all might
well deny my suggestion that epistemology presupposes ontology: for, as a neo-Kantian,
Kelsen takes it to be in the character of scientific cognition to create its own obiect; see
on this Tur, op. cit.
[6] Harris, Law and Legal Science, 70
[7] K. Olivecrona, L aw as Fact (first edn., London. 1939) 21: "It is impossible to explain
rationally how facts in the actual world can produce effects in the wholly different
"World of the Ought". At one time Kelsen bluntly declared that this was in fact "the
Great Mystery". That is to state the matter plainly. A mystery it is and a mystery it will
remain for ever."
[8] See H. Kelsen, The Pure Theory of Law (trans. M. Knight, Berkeley, 1967) Chapter 2
[9] See H . L. A. Hart, The Concept of Law (Oxford. 1961) 55-6, 86-8, discussed in
MacCormick. H. L . A . Hart (London, 1981) Chapters 3 and 4.
(101 Harris, Law and Legal Science, 52-7.
[ l l ] MacCormick, Hart. Chapters 3 and 4.
[12] The first application of this description to Hart's work is by P. M. S. Hacker, "Hart's
Philosophy of Law" in Law, Morality and Society (ed. P. M . S. Hacker and J . Raz,
Oxford 1977), at p.9: see also MacCormick. Hart, passim.
[I31 Anthony T . Kronman. Max Weber (London, 1983). 4-5.34-6.
[14] Compare T . L. S. Sprigge, "The Importance of Subjectivity: An Inaugural Lecture"
(1982) 25 Inquiry 143.
[IS] These general observations can be supported by a reading of the following works by
 H. L. A. Hart: The Concept of Law (Oxford. 1961). Chapters 1-7; "Definition and
Theory in Jurisprudence" (1954) 70 L Q R 37, and "Bentham on Legal Rights". Oxford
Essays in Jurisprudence (Second Series), (ed. A . W. B. Simpson, Oxford, 1973),
Chapter 3.
[I61 For Kelsen's value-scepticism. see What is Justice (Berkeley, 1957). Chapter 1; on Hart's
position, see MacCormick, Hart. Chapter 4.
[I71 One can here only gesture towards citing some examples, such as those provided by
Oxford Essays in Jurisprudence (ed. A . G . Guest, Oxford, 1961), Oxford Essays in
Jurisprudence (2nd Series) (ed. A . W . B. Simpson, Oxford, 1973), Law, Morality and
Society (ed. P. M. S. Hacker and J. Raz, Oxford. 1977) Perspectives in Jurisprudence
(ed. E . Attwooll, Glasgow. 1977). most of the essays in which symposia bear out the
point. Work such as Patrick Atiyah's Promises, Morals and Law (Oxford. 1981)
indicates the value of extended concentration on particular legal and moral institutions,
with which compare Charles Fried's Contract as Promise (Cambridge, Mass., 1981).
[18] See MacCormick. "Law as Institutional Fact", (1974) 90 L Q R 102 and "On Analytical
Jurisprudence", in Conceptions Conternporains du Droit (ed. P. Trappe, Wiesbaden,
1982), 29-41; 0 . Weinberger "Das Recht als lnstitutionelle Tatsache" (1980) 11
Rechtstheorie 427 and "Jenseits von Positivismus und Naturrecht", in Conceptions
Conternporains (cit. sup.) pp. 43-56 at pp. 45-7.
[19] Cf. H . Rottleuthner, Rechtstheorie und Rechtssoziologie (FreiburgIMiinchen, 1981)
57-61.
[20] Particularly influential have been J . L. Austin's How to d o Things with Words (Oxford,
1962), with which compare W. Twining and D . Miers, How to d o Things with Rules (2nd
edn., London, 1982), J . Searle, Speech Acts (Cambridge. 1969) and L. Wittgenstein,
Philosophical Investigations (Oxford. 1953). Except through recent and forthcoming
work by Bernard Jackson. comparatively little has been done to absorb lessons from
contemporary linguistic theory in the structuralist mode; see B. S. Jackson, "Structural-
isme et "Sources du Droit" " (1982) 27 A P D 147; Structuralism and Legal Theory,
(Liverpool Polytechnic Press Occasional Paper 20) (Liverpool, 1979).
[21] See J. Raz. The Concept of a Legal System (2nd edn., Oxford, 1981)
[22] Raz, "On the Functions of Law", Oxford Essays in Jurisprudence (Second Series),
Chapter 1I .
[23] See in general. Raz. Practical Reason and Norms (London, 1975); also "Promises and
Obligations". Law, Morality and Society. Chapter 12.
[24] For an acute critique of the concept of "exclusionary reasons", see K. M. Campbell, The
Concept of Rights (Oxford University D.Phil. Thesis. 1979).
[25] Albeit Raz does not himself so describe his work. I believe the appellation "permen-
eutic" to be appropriate: and see MacCormick, Hart. Chapter 5.
[26] Cf. Hart, Concept of Law. pp. 86-8
[27] J . Raz. "The problem about the Nature of Law", (1982) 3 Contemporary Philosophy
107.
[28] Frankfurt-am-Main. 1978; discussed extensively in MacCormick. "Legal Reasoning and
Practical Reason", Midwest Studies in Philosophy VII, Social and Political Philosophy
(ed. P. A. French e t a l . , Minneapolis. 1982) 271-286.
[29] Alexy, Theorie. 356-9: MacCormick. "Legal Reasoning and Practical Reason" 279-80.
[30j Alexy, op. cit. pp. 349-51; MacCormick, op. cit. pp. 281-2; see also Alexy, "Die Idee
einer prozeduralen Theorie der juristischen Argumentation" (1981) 12 Rechtstheorie,
Beiheft 2.
[31] Alexy, Theorie, 263.
[32] Alexy, op. cit. pp. 346-8
[33] R . Dworkin. Taklng Rights Seriously (London, 1978) Chapter 4
[34] op. cir., Chapter 13; also. "No Right Answer?". Law, Morality and Society. Chapter 3
[35] Junior Books & Co. Ltd. v. Veitchi Co. Lrd. [I9821 3 AIIER 201
[36] J . M. Farago, "Intractable Cases: the Role of Uncertainty in the Concept of Law" (1980)
55 N . Y . Univ. Law Rev. 195; and see also Farago. "Judicial Cybernetics: the Effects of
Self-Reference in Dworkin's Rights Thegis" (1980) Valparaiso Univ. Law Rev. 371.
[37] Aberdeen, 1981.
[38] Compare M. Krygier. "The Concept of Law and Social Theory". (1982) 2 0-wford
Journal of Legal Studies 155, and G . D . MacCormack " "Law" and "Legal System" "
(1979) 42 M L R 285, for two views on the problem of "law" in non-state societies.
[39] See Dworkin. Taking Rights Seriously. Chapter 2; also N. E. Simmonds "Practices and
Professor Dworkin" (1978) Jur. Rev. 142; "Practice and Val~dity"[I9791 CLJ 361-72.
[40] Dworkin, Taking Rights Seriously, Chapter 4 ; criticised in MacCormick. Legal Reason-
ing and Legal Theory (Oxford, 1978), excursus to Chapter 9; also in T . D. Perry,
"Dworkin's Transcendental Idea". Midwest Studies in Philosophy V11. 255-70.
[41] R. S. Summers, "Two Types of Substantive Reasons: The Core of a Theory of Common
Law Justification" (1978) 63 Cornell Law Rev. 707.
[42] Max Weber on Law in Economy and Society (ed. M. Rheinstein, Cambridge, Mass..
1954) 1-2. 61-4. Anthony Kronman's Max Weber seems to me on first reading to
underplay somewhat the significance of Weber's conception of "value rationality".
[43] MacCormick, Legal Reasoning and Legal Theory, Chapters 5 and 6: but see now also
MacCormick "Legal Decisions and their Consequences: from Dewey to Dworkin"
(1983) 58.239-58. N. Y. Univ. Law Rev..
[44] B. Rudden, "Consequences", (1979) Jur. Rev. 193.
[45] As for example in J . Rawls. A Theory of Justice (Oxford, 1972); R . Nozick, Anarchy,
State and Utopia (Oxford. 1974); Dworkin. Taking Rights Seriously; C . Fried. Right and
Wrong (Cambridge, Mass. 1978); R . Posner, The Economics of Justice (Cambridge,
Mass., 1981) V. Haksar, Equality, Liberty and Perfectionism (Oxford, 1979); and the
voluminous secondary literature surrounding such works. If "philosophy of law" were an
exact translation of "Rechtsphilosophie". I ought to have devoted most of this paper to
discussion of this issue.
[46] Initiated in Ch. Perelman and L. Olbrechts-Tyteca La Nouvelle Rherorique (Paris.
1958). and continued most recently in Logique Juridique: Nouvelle Rhetorique (Paris.
1976) and L'Empire Rhetorique (Paris. 1977).
[47] J. Esser, Vorverstanonis und Methodenwahl in der Rechrsfindung (Frankfurt-am-Main,
1970); discussed in L. V. Prott, "Updating the Judicial "Hunch": Esser's Concept of
Judicial Predisposition" (1978) 27 A m . Jo. Comp. Lab' 461.
[48] L. L. Fuller, The Morality of Law (Revised edn.. Newhaven. 1969)
[49] See J . Finnis, Natural Law and Natural Rights (Oxford, 1980) Chapters 2-4
[SO] J . L. Mackie, Ethlcs: inventing Right and Wrong (Harmondsworth, 1977). 38-41
[51] Finnis, op. cit., Chapter 5.
(521 Finnis, op. cir.. Chapters 6-10
[53] Finnis, op. cit., Chapter 11
[54] Finnis, op. cit., Chapters 11, 12
[55] Finnis, op. cit.. Chapters 1. 12
[56] L . L. Fuller, to be published shortly in the "Jurists" series, by Edward Arnold Ltd.,
London.
[57] A term resurrected by H . L. A . Hart from nineteenth century thinkers, in Lab' Liberty
and Morality (London, 1963): Cf. MacCormick, Hart, Chapter 4.
[58] Cf. Lord Lloyd, "Do we need a Bill of Rights" (1976) 39 M L R 1; A . J . M. Milne "Should
we have a Bill of Rights" (1977) 40 M L R 389.
[59] C f . R . Geuss, The Idea of a Critical Theory: Habermas and the Frankfurt School
(Cambridge, 1981). Some legal instances of "critical theory" are: R. Gordon "Histori-
cism in Legal Scholarship". (1981) 90 Yale L.J. 1017. D . Kennedy "Form and Substance
in Private Law Adjudication" (1976) 89 Harvard Lab' Rev. 1685. Roberto Unger on
"The Critical Legal Studies Movement" (1983) 96 Harvard Lab' Rev. 561.

[60] K. L. Kunz. Die Analyrische Rechtstheorie: Eine "Rechts" rheorie ohne Rechr? (Berlin,
1977).
1611 F. A . Hayek. Law, Legislation and Liberty, Vol. 1, (London. 1973). 29-31.
[62] Cf. W. J. Chambliss and R . B. Seidman. Law, Order and Power (Reading, Mass.,
1971).
[63] Rawls, A Theory of Justice, 105-8; MacCormick, Legal Right and Social Democracy
(Oxford, 1982) Chapters 1 , 5 .
[64] T . Campbell. The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights
(London. 1983), 213.
[65] Cf. Aulis Aarnio, O n Legal Reasoning (Turke, 1977) pp. 126-9: Legal Point of View: Si.x
Essays on Legal Philosophy (Helsinki. 1978) p. 162. A . Peczenik, "Right and Wrong in
Legal Reasoning". Conceptions Contemporains du Droit. 57-75.
[66] Z. Bankowski and D. Nelken. "Discretion as a Social Problem", in Discretion and
Welfare (ed. M. Adler and S. Asquith. London. 1980), pp. 247-68 at 263-5.
[67] By Zenon Bankowski in "The Value of Truth: Fact-Scepticism Re-Visited" (1981) I
Legal Studies. 257-66.
[68] See R. Eggleston, Evidence. Proof and Probability (London, 1978); J . Cohen, The
Probable and the Provable (Oxford, 1977) G . Williams. "The Mathematics of Proof"
(1979) Crim. Law Rev. 297.340; J . Cohen, "The Logic of Proof" (1980) Crim. Law Rev.
91; G . Williams, "A Short Rejoinder", id.. 103.
[69] W. Twining. "Taking Facts Seriously", in Essays on Legal Education (ed. N. Gold.
Toronto, 1981); "The Rationalist Tradition in Evidence Scholarship" in Well and Truly
Tried (ed. E . Campbell and L. Waller, Melbourne, 1981); and see the forthcoming
symposium edited by Twining Facts in Law (1983).
[70] Cf. P. Berger and T . Luckmann. The Soclal Construction ofReality (London. 1966).
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Contemporary Legal Philosophy: The Rediscovery of Practical Reason
Neil MacCormick
Journal of Law and Society, Vol. 10, No. 1. (Summer, 1983), pp. 1-18.
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Notes And References

3
What is Jurisprudence?
R. H. S. Tur
The Philosophical Quarterly, Vol. 28, No. 111. (Apr., 1978), pp. 149-161.
Stable URL:
http://links.jstor.org/sici?sici=0031-8094%28197804%2928%3A111%3C149%3AWIJ%3E2.0.CO%3B2-%23

5
What is Jurisprudence?
R. H. S. Tur
The Philosophical Quarterly, Vol. 28, No. 111. (Apr., 1978), pp. 149-161.
Stable URL:
http://links.jstor.org/sici?sici=0031-8094%28197804%2928%3A111%3C149%3AWIJ%3E2.0.CO%3B2-%23

5
The Imperative Fallacy in Kelsen's Theory
A. Wilson
The Modern Law Review, Vol. 44, No. 3. (May, 1981), pp. 270-281.
Stable URL:
http://links.jstor.org/sici?sici=0026-7961%28198105%2944%3A3%3C270%3ATIFIKT%3E2.0.CO%3B2-C

5
What is Jurisprudence?
R. H. S. Tur
The Philosophical Quarterly, Vol. 28, No. 111. (Apr., 1978), pp. 149-161.
Stable URL:
http://links.jstor.org/sici?sici=0031-8094%28197804%2928%3A111%3C149%3AWIJ%3E2.0.CO%3B2-%23

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38
'The Concept of Law' and Social Theory
Martin Krygier
Oxford Journal of Legal Studies, Vol. 2, No. 2. (Summer, 1982), pp. 155-180.
Stable URL:
http://links.jstor.org/sici?sici=0143-6503%28198222%292%3A2%3C155%3A%27COLAS%3E2.0.CO%3B2-V

38
"Law" and "Legal System"
G. MacCormack
The Modern Law Review, Vol. 42, No. 3. (May, 1979), pp. 285-290.
Stable URL:
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39
The Naming of Athenian Girls: A Case in Point
Blaise Nagy
The Classical Journal, Vol. 74, No. 4. (Apr. - May, 1979), pp. 360-364.
Stable URL:
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58
Do We Need a Bill of Rights?
Lloyd of Hampstead
The Modern Law Review, Vol. 39, No. 2. (Mar., 1976), pp. 121-129.
Stable URL:
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58
Should We Have a Bill of Rights?
A. J. M. Milne
The Modern Law Review, Vol. 40, No. 4. (Jul., 1977), pp. 389-396.
Stable URL:
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