Background And Positivism Theories Of Law - 1399 Words

Background and Positivism Given his background of being a legal positivist, MacCormick appears to have developed his overarching positivist schema from Hart. This is evidenced by parallels between their respective theories of law. MacCormick’s informal normative order, as depicted in the example of queuing, is activity organised around a common normative opinion. This common normative opinion is a general sense among the relevant population that there are particular patterns of behaviour that everyone ought to follow. This is similar to Hart’s social rule which is a pattern of conduct that a relevant group participates in from the internal point of view. To participate in a pattern of conduct from the internal point of view is to treat†¦show more content†¦On the knowledge that Hart’s complex of social rules and MacCormick’s informal normative order both define their respective legal systems, we move on to address the resemblances between Hart’s unions of primary a nd secondary rules and MacCormick’s institutional normative order. Hart describes secondary rules as a complex of social rules and primary rules as rules of conduct which are regulated by secondary rules. On the other hand, MacCormick’s institutional normative order also constitutes two elements that parallel Hart’s primary and secondary rules. The first element is rules which are explicitly articulated norms and this runs parallel to Hart’s primary rules. The second element is informal normative orders which are rule- defining, these are similar to Hart’s secondary rules. The slight difference between Hart’s social rules and MacCormick’s informal normative order can potentially lead to important differences in their theories of law. The underlying idea of MacCormick’s legal system’s rule-defining informal normative order then becomes the ultimate determinant of what is and is not law. Without the requirement for an underlying idea, Hart will most likely disagree with MacCormick about what is and is not law, setting apart their theories. Immoral law cannot be law Despite his overarching positivist viewpoints as influenced by Hart, MacCormick is a self-proclaimed post-positivist who regards a central positivist