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

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Abstract

This paper offers a diachronic reconstruction of MacCormick’s theory of law and legalargumentation: In particular,two related points will be highlighted in which the difference between the perspectiveupheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The ? rst point concernsMacCormick’s gradual break with legal positivism,and more speci? cally the thesis that the implicit pretension tojustice of law proves legal positivism false in all its different versions. The second point concerns MacCormick’sacceptance of the one-right-answer thesis and the consequent thinning of the differences between MacCormick’stheory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent,however,is not only todescribe this change in MacCormick’s thought,but also to attempt a defence of the original view that we ? nd inLegal Reasoning and Legal Theory.
Original languageUndefined/Unknown
Pages (from-to)153-161
Number of pages9
JournalZHENGFA LUNCONG
Publication statusPublished - 2019

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