Understanding law as a MacIntyrean 'Practice'

Presented by: Andrew Curtin

Title: Understanding Law as a MacIntyrean `Practice'

Advisors: Prof Nick Aroney and Dr Rob Mullins

When: 3-4pm, Wednesday 27 January 2021

Where: Boardroom (W353), Level 3, Forgan Smith building (1)

Abstract: 

The law is seemingly included in MacIntyre’s famous denunciation of the culture of liberal modernity.  However, a friendlier account of law and, in particular, of the common law tradition can be given which accords with MacIntyre’s own definition of a “practice.”  Hayek’s evolutionary jurisprudence offers an analogue for discovering the positive law to be an instantiation of the natural law through the socially embodied interactions of plain persons that functions as a corrective for MacIntyre’s crypto-positivist assumptions.

Rather than making MacIntyre more amenable to liberalism, reading the famously ‘liberal’ Hayek as a corrective to MacIntyre offers an opportunity to pay attention to the traces of natural law reasoning implicit in Hayek’s thinking and to uncover an almost unwitting account of human teleology that informs his project. 

A similar corrective is found in the normative significance that the historical school of jurisprudence (represented by Berman) attributes to the historicity of the common law.  However, MacIntyre’s objections are irreconcilable with the rosy legislative positivism of Waldron. 

Retter argues that an Aristotelean account of natural rights would overcome MacIntyre’s rejection of human rights as a manifestation of liberalism but MacIntyre does not share Finnis’ enthusiasm for clothing natural law concepts in the language of rights.  He suspects that attempting to colonise so liberal a term would likely only perpetuate a liberal understanding of rights. Nonetheless, the jaundice implicit in MacIntyre’s account need not be essential to the concept.