Abstract

Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs when with a hard case. The reason why MacCormick's theory is successful in this regard is that it offers the judge a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The former circumstance is of course important - unless we rank the interpretive arguments, the theory simply will not be able to give the judge any guid ance at all. But the latter circumstance is also cause itmeans that judges will be able to apply the theory even be though they may lack a deep understanding of the relevant field of substantive law. Judges, as is well known, are usually gen eralists, not experts in any particular field. So unlike Ronald Dworkin's subtle and intriguing theory of adjudication,80 MacCormick's theory might actually be applied by real judges in any jurisdiction. This must be considered quite an advantage. To be sure, applying MacCormick's theory to a concrete case is not always easy. But the difficulties we have encountered in applying the theory have been difficulties that would create problems for any theory of legal reasoning. Moreover, with one these difficulties can be handled within the frame work of the theory as it stands. For example, the problem of choosing between a technical and an ordinary version of plain exception which we encountered in the Boxer case, can in most cases be solved by reference to the value that underlies the textual approach, namely predictability. The problem about intentionalist arguments, which we encountered in the case of the Statutory Share, can be solved by simply adding the cate gory of intentionalist arguments toMacCormick's typology of interpretive arguments, or perhaps by placing intentionalist arguments in the category of textual arguments.81 The problem of linguistic indeterminacy, however, which we encountered in theWeber ase, appears to be more or less impossible to solve. If and to the extent that the words that occur in the statute are vague or ambiguous - in their ordinary or in their technical meaning, or in both - the value of the textual approach is clearly reduced. The judge must then proceed to consider systemic and teleological arguments in that order.