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THE DIALECTIC OF MIGHT
AND RIGHT: LEGAL
POSITIVISMS AND
CONSTITUTIONAL
CHANGE
Neil MacCormick

Introduction: The Roots of Anti-Naturalism
Whoever poses the issue of 'Might against Right' effectively issues
a rhetorical invitation for all to line up on the side of Right. Who
does not prefer that those who exercise power exercise it only by
guidance of plain justice, so thatpower serves right and fair deal-
ing among humans? Who is openly willing for power to be exer-
cised arbitrarily and unrighteously? It is all too easy to see why
there is a yearning in us all after some form of 'higher law'.
Whether given by God or implicit in the nature of things or the
nature of humankind (or all three), a higher law comprising clear
prescriptions and prohibitionswould set a pattern of right against
which to measure human arrangements and human dispositions of
power. Then the plea for Right to rule Might would not collapse
for want of an objective test to tell us what is right.
Alas, there has been a plethora of competing claims to revela-
tion or derivation of the single true higher law. Many such claims
have been associated with one or anotherreligion or sect, some
with none at all. This cacophony of competing interpretations or
versions of 'higher law' or 'natural law' has led to disappointment
of the hope for this ideal security against misrule. There is not
after all a clear test for what counts as misrule (for example, was
the fatwa pronounced against Salman Rushdie for his Satanic
Verses a deliverance of higher law oran affront to it?). Even if
there is a higher law, the bitter disputes its proper interpretation
LEGAL POSITIVISM
AND DELIBERATIVE
DEMOCRACY
Tom Campbell
When celebrating the great intellectual tradition stemming from
the work of Jeremy Bentham it is appropriate to remind ourselves
that legal philosophies often gain their significance and import
from their place within widerpolitical theories. It was Bentham's
utilitarian philosophy that fuelled his theory of law as well as his
eventual commitment to democracy. In contemporary legal philos-
ophy the increasing importance of what we may call political
philosophies of law follows on a decline in respect for purely
analytical approaches to legal concepts, uncritical empiricist stud-
ies of law, and closed-circuitdoctrinal exposition. The topical
question in legal theory at the end of the millennium is not so
much 'what is law?' as 'what sort of law do we want and why?'
In this context it may seem curious to focus on legal positivism,
an approach to law which has come to be identified with empty
formalism, theorizing by definition, morally detached linguistic
analysis, and the unreflectivescience of calculable observations.
However, legal positivism can be viewed as at base a morally
grounded approach to law that sets out an ideal type of legal
system. On this interpretation, legal positivism is a living political
philosophy available to be re-articulated in relation to current
political conditions. In particular, there is exciting work to be
done relating the insights oflegal positivism to the re-emerging
participatory models of politics as they feature in deliberative or
discourse theories of democracy. 1
____________________
1 | For an excellent collection of essays, see James Bohman and William Rehg
(eds.), Deliberative Democracy ( Cambridge, Mass., 1997); also, Carlos Nino, The
Constitution of Deliberative Democracy ( New Haven, Conn., 1996). |-65-
NCLUSION AND
EXCLUSION: CITIZENS,
SUBJECTS AND OUTLAWS
R. A. Duff
Talk of 'inclusion' (as a manifestly good thing) and 'exclusion' (as
a manifestly bad thing) has become fashionable amongst both
theorists and politicians in recent years, along with talk of
'community' as a panacea for all our ills: so fashionable that the
British government, ever anxious to associate...