超越宣告性模式和判决主义模式* ———麦考密克对“法律推理和法律理论”的重新思考

Abstract

This paper offers a diachronic reconstruction of MacCormick’s theory of law and legal argumentation: In particular，two related points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked． The ? rst point concerns MacCormick’s gradual break with legal positivism，and more speci? cally the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions． The second point concerns MacCormick’s acceptance of the one－right－answer thesis and the consequent thinning of the differences between MacCormick’s theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy． The intent，however，is not only to describe this change in MacCormick’s thought，but also to attempt a defence of the original view that we ? nd in Legal Reasoning and Legal Theory．