What makes an argument in a law case good or bad? This book examines this and other questions central to the study of jurisprudence. Care has been taken to make the legal elements of the book readily accessible to non-lawyers, and the philosophical elements to non-philosophers.

On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil society : law (...) and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

Introduction HLA Hart: A biographical sketch Jurisprudence is the theoretical study of a practical subject. Its object is to achieve a systematic and ...

This is a controversial work of applied legal theory, addressing urgent contemporary questions about law and the state, about the character of the UK as a state, and about the juridical character of the European Union.

The thesis that propositions of law are intrinsically arguable is opposed by the antithesis that the Rule of Law is valued for the sake of legal certainty. The synthesis considers the insights of theories of rhetoric and proceduralist theories of practical reason, then locates the problem of indeterminacy of law in the context of the challengeable character of governmental action under free governments. This is not incompatible with, but required by the Rule of Law, which is misstated as securing legal (...) certainty. Defeasible certainty is the most that is desirable or achievable. (shrink)

This work is a controversial collection of interrelated papers investigating and arguing about issues of concern to lawyers and politicians today. MacCormick combines a scholarly concern with leading thinkers such as John Locke, Lord Stair, Adam Smith and David Hume, John Rawls, Ronald Dworkin, and Patrick Atiyah, and stringently argued view of questions of political obligation, civil liberty, and legal rights.

BackgroundObtaining consent has become a standard way of respecting the patient’s rights and autonomy in clinical research. Ethical guidelines recommend that the child’s parent/s or authorised legal guardian provides informed consent for their child’s participation. However, obtaining informed consent in paediatric research is challenging. Parents become vulnerable because of stress related to their child’s illness. Understanding the views held by guardians and researchers about the consent process in Malawi, where there are limitations in health care access and research literacy will (...) assist in developing appropriate consent guidelines.MethodsWe conducted 20 in-depth interviews with guardians of children and research staff who had participated in paediatric clinical trial and observational studies in acute and non-acute settings in the Southern Region of Malawi. Interviews were audio-recorded, transcribed verbatim, and thematically analysed. Interviews were compared across studies and settings to identify differences and similarities in participants’ views about informed consent processes. Data analysis was facilitated by NVIVO 11 software.ResultsAll participants across study types and settings reported that they associated participating in research with therapeutic benefits. Substantial differences were noted in the decision-making process across study settings. Guardians from acute studies felt that the role of their spouses was neglected during consenting, while staff reported that they had problems obtaining consent from guardians when their partners were not present. Across all study types and settings, research staff reported that they emphasised the benefits more than the risks of the study to participants, due to pressure to recruit. Participants from non-acute settings were more likely to recall information shared during the consent process than participants in the acute setting.ConclusionThe health care context, culture and research process influenced participants’ understanding of study information across study types and settings. We advise research managers or principal investigators to define minimum requirements that would not compromise the consent process and conduct study specific training for staff. The use of one size fits all consent process may not be ideal. More guidance is needed on how these differences can be incorporated during the consent process to improve understanding and delivery of consent.Trial registration Not applicable. (shrink)

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding ; some articulated in context of two-tier normative order: `rules', explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, `institutional facts ' depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either `absolute application' or `strict application' or `discretionary application', depending on second-tier empowerment. Discretion can be guided by (...) values, principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: `constitutive rule' rejected in favour of `underlying principle', structure of `institutive, consequential and terminative' rules explained and defended. Ruiter's conception of `institutional `régime' considered and adopted, validity of norms and normative `régimes' considered and differentiated from truth of statements of institutional fact. (shrink)

This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

BackgroundConcerns about decision making related to resuscitation have led to two important challenges in the courts resulting in new legal precedents for decision-making practice. Systematic research investigating the experiences of doctors involved in decisions about resuscitation in light of the recent changes in law remains lacking.AimTo analyse the practice of resuscitation decision making on hospital wards from the perspectives of doctors.DesignThe data presented in this paper were collected as part of a wider research study of end-of-life care in an acute (...) hospital setting. Data collection comprised ethnographic non-participant observation on two acute hospital wards and individual interviews with patients, relatives and healthcare professionals caring for patients thought to be approaching the end of life. Data were analysed using a constructivist grounded theory approach.ResultsDiscussions and decision making about resuscitation present many challenges for those involved on acute medical wards. The data highlight the potential for multiple interpretations of legal precedents, creating misunderstandings that may impact patient care in less positive ways.ConclusionsThis paper provides unique insights into how doctors respond to the changing medico-legal culture and the subsequent effects on patient care. It demonstrates how the juridification of medical practice can occur. It highlights the potential benefit of a structure to support clinicians, patients and relatives in discussing and navigating decisions around care at the end of life in line with the patient’s wishes and preferences. Recommendations for future research are made and legal ramifications are discussed. (shrink)

Incentives and reasons -- Values and human nature -- Right and wrong -- Questions of trust -- Autonomy and freedom -- Obedience, freedom, and engagement : or utility? -- Society, property, and commerce -- On justice -- Using freedom well -- Judging : legal cases and moral questions -- Practical reason, law, and state.

“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined (...) in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

D. N. MacCormick; XI*—The Obligation of Reparation, Proceedings of the Aristotelian Society, Volume 78, Issue 1, 1 June 1978, Pages 175–194, https://doi.org/10.

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a ‘commonwealth’, comprising a commonwealth of ‘post-sovereign’ states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or ‘people’ for democracy to be possible? If not democratic, what is it? Monarchy, (...) oligarchy, or democracy, or a ‘mixed constitution’? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth. (shrink)

Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist ‐ or at least some of his followers on the contemporary British and American political scene ‐ have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule of law (...) to social justice. (shrink)

"16 'On Justification and Interpretation', ARSP-Beiheft, 53, pp. 255-68." -- "17 'Authority Reasons in Legal Interpretation and Moral Reasoning', ARSP Supplementa (III), pp. 144-52." -- "18 'Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification', Cornell Law Review, 63, pp. 707-88." -- "19 'Reasonableness and Objectivity', Notre Dame Law Review, 74, pp. 1575-603.

Papers presented at the IVR 11th World Congress, Helsinki, 1983.

Este artículo tiene cuatro secciones principales. En la primera planteo algunas cuestiones sobre la ambigüedad de la idea de país libre, y muestro cómo algunas consideraciones que se siguen de ella han conducido a un desencanto del nacionalismo, más como un tema filosófico que como un fenómeno histórico lamentable. En la segunda, asumo la postura quizás antitética de que, respecto a la descolonización y a la perestroika, la mayoría de la gente parece tener una opinión muy radical en favor de (...) la autodeterminación nacional, sin realmente relacionarla con aquella concepción que rechaza la posibilidad de que el nacionalismo ocupe un lugar dentro de una filosofía política normativa. En la tercera, vuelvo a las ideas de libertad con la esperanza de despejar la confusión y, quizás, de trascender incluso la contradicción entre las secciones primera y segunda. Finalmente, afronto directamente la cuestión de si el nacionalismo es filosóficamente creíble, y acabo con la recomendación de lo que considero una teoría liberal y moderada del nacionalismo. (shrink)

In 1999, my work as a full-time law professor came to a temporary halt. Shortly before this happened, I brought out a book called Questioning Sovereignty 1 . This attempted to apply my version of the institutional theory of law to certain urgent contemporary questions in the philosophy of law and political philosophy circulating around the ideas and the roles of law, state, and nation in ‘the European Commonwealth’ (as I there called it). Then, partly by chance, I was elected (...) as one of the eight members of the European Parliament representing Scotland. My theoretical questions thus acquired a directly practical edge. All the more so at the end of 2001, for then I was most fortunately elected to take part in the Convention on the Future of Europe set up by the European Council at Laeken in December of that year. (shrink)

"The present volume deals with a number of fundamental issues in philosophy of law and social philosophy. The reviews and perspectives it represents are thoroughly international in scope and range, with the participation of leading thinkers from six continents. Within the overall theme of 'Enlightenment, Rights and Revolution', each of the sub-themes has been so well explored by its authors that the whole does amount to more than the sum of its parts. As editors, we might have been temped to (...) claim credit for this beyond our due; in truth, however, the authors of the essays which make up the book did it all with a minimum of editorial intervention, and in a very short time. We are profoundly grateful to them all."--Preface. (shrink)

A restatement of an institutionalist theory of law is attempted with particular reference to legal reasoning and legal rights. Use is made of Ota Weinberger's concept of “practical information”, focusing on both its momentary and diachronic aspects. Momentary practical information corresponds to the need to know which conduct is required of us at a given moment. The diachronic practical information becomes relevant whenever we wish to stabilize the practical information and to reduce the likelihood of change regarding our ways of (...) acting. Furthermore, the momentary information is given sense only against the background of the diachronic one. Among the different types of diachronic practical information particular importance is ascribed to legal “institutions” such as contracts and rights. Legal “institutions” are conceived as founded on various sets of rules. Rules may then increase the number of facts in the world: those special kinds of facts which are represented by social phenomena. (shrink)