Understanding Law as a MacIntyrean ‘Practice’

HDR Candidate: Andrew Curtin

Advisors: Prof Nicholas Aroney (Principal) and Dr Robert Mullins (Associate)

Title:  Understanding Law as a MacIntyrean ‘Practice’

Abstract:  Alasdair MacIntyre’s After Virtue-project critiques modern liberal individualism.  MacIntyre claims that modern culture – including the positive law – is ineluctably tainted by liberal individualism and that the modern state’s institutions are irredeemably hostile to the formation of virtue.  Instead, MacIntyre advocates the formation of small communities in which to preserve that tradition.  MacIntyre notes that, to the extent practitioners of virtue are obliged to engage with public institutions, they must do so without being “co-opted”.  However, he also endorses occasional recourse by practitioners of virtue to the intervention of the state and its resources.  This tension may be ameliorated by exposing the functional positivism of his account and his jaundiced understanding of the way in which the discipline of law operates or, using Hayek’s concept of an evolved legal order, by developing a theory in which the natural law can be discovered as having been at least partially instantiated by the actions of plain persons in a manner consistent with MacIntyre’s commitment to the social embodiment of concepts and his faith that a greater than acknowledged degree of shared recognition of the good may already be present.  This would allow the discipline of law to be understood as a MacIntyrean “practice”.