Intellectual historians may come to regard the last fifty years as a Golden Age of legal theory, especially in the English-speaking West. Happily several of the leading figures of this period are still alive and active, but sadly three of them have died in the last four years; Neil MacCormick (1941–2009), Philip Selznick (1919–2010) and Ronald Dworkin (1931–2013). Providentially, each of them lived to see the publication of a magisterial work, which will be seen as a culmination rather than merely a summation. First, in time, was Selznick's The Moral Commonwealth: Social Theory and the Promise of Community (Berkeley, 1992), called by his biographer “a work of expansive range, ambition, erudition and richness.” (Martin Krygier, Philip Selznick: Ideals in the World (Stanford, 2012), p.4). This was supplemented by The Communitarian Persuasion (Washington DC, 2002) and A Humanistic Science: Values and Ideals in Social Inquiry (Stanford, 2008). Neil MacCormick's equally ambitious quartet Law, State and Practical Reason (1999–2008) will be discussed below. In my view, Ronald Dworkin's Justice for Hedgehogs (Cambridge Ma, 2011) is his best work. In it he magnificently sets out his mature philosophy of private and public morality relatively unencumbered by a less persuasive jurisprudence.

These three very different works converge in the authors' strong commitment to the primacy of morals within a broad Western liberal democratic ideological tradition. Yet they are strikingly different in provenance, style, conceptions of legal theory and intellectual and political agendas. MacCormick's Scotland sets out to explain the distinctiveness of MacCormick's life and thought in terms of his “Scottishness”.

This review explores how far this claim seems plausible in relation to the similarities and differences between these three major theorists' final works. Before considering this book, I should insert a personal note. I was a close friend of Neil's, I knew him well personally and professionally. We collaborated and debated frequently. We had very similar views on Jurisprudence, but differed on such topics as precedent, conceptions of “institution”, inferential reasoning, and positivism. Naturally, I shared the affection, respect and sadness that was so movingly expressed after his death. I wrote a quite substantial memoir (Biographical Memoirs of Fellows of the British Academy XI, 449–71, 2012). This necessitated re-reading many of his earlier writings, working through the quartet systematically, and learning more details of his family background and political career. There were also many obituaries and encomia, and three festschrifts. When, after I had completed my memoir, I first saw MacCormick's Scotland (essentially a fourth festschrift) I wondered what it could add.

Neil MacCormick was a prolific writer. When he was elected to the British Academy in 1986 he had already published four well-regarded books and had earned a considerable international reputation as a jurist. At that stage he was generally considered to be a disciple of Herbert Hart as well as a leading Scottish nationalist. Although there are some continuities, Law, State and Practical Reason represents a substantial departure from his earlier writings. The first in time of the quartet, Questioning Sovereignty (Oxford, 1999), was published just before he became a Member of the European Parliament for five years, representing the SNP. It deals with self-determination, Scottish nationalism, democracy, the out-modedness of sovereignty, and the future of Europe, all topical issues largely remote from the agenda of analytical legal philosophy. Rhetoric and the Rule of Law (2005) contains the fullest statement of his ideas on practical reasoning, informal logic, rhetoric in non-demonstrative arguments and narrative coherence. Institutions of Law (2007), which he presented as the lynchpin of the quartet, was a development and refinement of his general theory of law, which can be traced back to his inaugural lecture in Edinburgh in 1972/3, where he first outlined his conception of law as institutional facts. This had its beginnings in speech act theory, then fashionable with Oxford philosophers, but which led to a significant deviation from Hart's conception of law. Practical Reason in Law and Morality (2008), completed during his last illness, is a final statement of his moral theory and the underpinnings of what he called “post-positivism” __ that is the view that morality and law are conceptually distinct, but that “[e]xtremes of injustice are incompatible with law.” (MacCormick, 2007: Preface) The quartet was imagined as a coherent unity and presented as a general theory of law with its foundations in moral, political and social philosophy.

There is a danger that Law, State and Practical Reason and his earlier writings will be interpreted mainly in terms of a story of a steady progression away from Hartian positivism towards Dworkinian idealism. MacCormick's Scotland shows why this is fundamentally misleading. However, Neil himself seemingly gave some colourable support to such a story. In an unpublished autobiographical note he summarised his intellectual development as follows:

This account is seemingly confirmed by MacCormick's excellent book, HLA Hart: in the first edition the author appears as an enthusiastic disciple; in the second edition, he is rather more critical, but still within the framework of Oxonian analytical legal philosophy.

There is an alternative narrative which emphasises MacCormick's initial grounding in a different tradition of philosophy. This combined immersion in the Scottish Enlightenment with quite different forms of moral theory from Hart's, including neo-kantianism, together with an interest in logic and informal reasoning. According to this story, MacCormick's main intellectual trajectory was set at home and as a student in Glasgow before he first went to Oxford in 1963. When he took up the Regius Chair of the Law of Nature and the Law of Nations in Edinburgh in 1972, he returned to his intellectual roots. It took time to distance himself from Hartian jurisprudence and it was a combination of renewed immersion in thinkers of the Scottish Enlightenment and exposure to several strands of Continental European legal thought (especially Weinberger, Perelman and Alexy) that laid the foundation for his remarkable quartet. MacCormick's final statement has many strands, but the most distinctive aspect of his contribution is his Scottishness.

MacCormick's Scotland revolves around four themes: the sources of his Scottishness; the Scottish roots of his general philosophy and his jurisprudence; Scottish nationalism; and his contributions to public life in Scotland and beyond. Several chapters throw light on his “roots” __ not just the great Enlightenment thinkers (especially Stair, Hume and Adam Smith), nor his political upbringing and involvement, but also his identification with Scotland's history, literature, countryside and institutions. In an elegant essay Hector MacQueen emphasises the significance of MacCormick's relationship with Scots law. Although his formal legal education was in England, he engaged seriously with Scots private law and became proud of it, not because it was Scottish, but because of its internal structure and coherence. As an Englishman, when I first read Institutions of Law, I thought that the central part on “General Concepts” (a redaction from his contribution to The Laws of Scotland: The Stair Memorial Encyclopedia T.B. Smith and R. Black (eds.), Edinburgh, 1990) was a throwback to old style analytical jurisprudence and did not really belong. Now I see that this was part of a demonstration of how basic concepts can give a legal system “a systematic and rational nature” (Institutions, 2007, p. 15). Two more analytical chapters by Gerry Maher and Julie Dixon usefully explore different conceptions of a legal system and the concept of a non-sovereign Scottish legal system, bringing out clearly how MacCormick's concept of institutions and his use of the idea of “institutional facts” helps to bridge the divide between law as ideas and law as social facts.

MacQueen and Walker discuss MacCormick's lifelong engagement with Hume, Stair and Adam Smith. John Cairns and Alexander Broadie relate his work to two figures, who may be less well known outside Scotland – John Millar and Adam Ferguson. Maksymilian del Mar appends to a comprehensive bibliography a short essay that shows how Scottish themes and issues permeate MacCormick's writings. Drew Scott and William Storrar place him in the Scottish tradition of the public intellectual, bringing his scholarly resources to bear on contemporary issues in order to influence debates and events in Scotland and beyond. Zenon Bankowski, his long-time colleague and friend in Edinburgh, contributes an affectionate postscript which evokes some of the special atmosphere that Neil generated in his own department, in the law school and the university. Several of the chapters bring out the extent of his contributions to public life as a political activist both in Scotland and in the European Union. Taken as a whole the book shows how MacCormick's concerns, agendas and distinctive ideas have deep roots in Scottish, history, culture, politics, institutions, law and, above all, the Scottish Enlightenment. But it makes clear that his influence and significance reach far beyond Scotland.

It is beyond the scope of a short review to explore the many paths that have to be followed in doing justice to the quartet. But two aspects of MacCormick's Scottishness deserve emphasis in this context: his interpretation of nationalism and his conception of the activity of theorising about law. The first is dealt with in two fine chapters by Neil Walker and Joanne Scott. Neil was born a Scottish nationalist. Both parents were committed to the cause. His father, John MacCormick (1904–61), widely known as “King John”, was a founding member of the National Party of Scotland in 1928 and the Scottish National Party in 1934. He was involved in “the repatriation” of the Stone of Scone from Westminster Abbey and the famous case of MacCormick v Lord Advocate. Within the SNP he was a controversial figure because he favoured a pragmatic, evolutionary approach to self-determination, but this approach helped to raise the profile and broaden the appeal of the nationalist cause. Neil followed his father in his commitment to gradualism, but in due course opted for full independence for Scotland and, among other things, played a major role in drawing up the SNP's proposals for a Scottish Constitution in 1976–77. He was a close friend of John Smith and part of a generation of politicians and intellectuals who greatly influenced the climate of opinion in the direction of moderate nationalism, including Ken Alexander, Donald Dewar, and Tom Nairn. Neil's special contribution was his engagement with Europe and his distinction as a philosopher.

From an early stage MacCormick had to confront tensions between his nationalism, his general political philosophy and his commitment to the European Union. An early essay on “Nations and Nationalism”, (1979, reprinted as Chapter 13 of Legal Right and Social Democracy, Oxford, 1982) identified three broad themes that he developed over many years, culminating in Questioning Sovereignty. First, justifiable forms of nationalism are to be clearly distinguished from atavism, parochialism and chauvinism Rather “civic nationalism”, which involves moderate love of family, country, co-religionists and colleagues, is constitutive of community and recognises “as equally legitimate (because of the same kind) the love others bear their own”. (MacCormick, 1982 p. 253) He strongly rejected “the dark side of nationalism” and warned his fellow Scots against its pitfalls.

Second, normative individualism (as opposed to atomism) is quite compatible with social democracy and civic nationalism. In an important essay (chapter 7), Neil Walker sympathetically disentangles these seemingly incompatible strands in MacCormick's thought and develops his own idea of “the Union State” in a post-sovereign world.

Third, nationalism is historically and conceptually separate from the idea of the state. The idea of the nation-state as the only legitimate form of polity and a conception of sovereignty as indivisible and illimitable are both outmoded. Independence is compatible with some loss of sovereignty and there is no necessary correlation between state, law, and nation. By relativising such concepts as sovereignty, independence and self-determination, MacCormick was able to square his Scottish nationalism, including support for “full independence” for Scotland, with his strong support for the European Union, his commitment to social democracy and a the belief that the German idea of Rechtstaat held out the best prospect for a flourishing Rule of Law.

At the end of Questioning Sovereignty, MacCormick, the consummate democrat, neatly distinguished his roles as philosopher and activist: “General principles do not settle concrete cases, and the settlement of this kind of case is a matter for political process, in which the philosopher has no larger a voice than anyone else” (MacCormick (1999), p. 204).

MacCormick's Scotland explains his “Scottishness”. It is perhaps less successful in identifying what is distinctive about his conception of legal theorising and his contributions to jurisprudence. This can be done succinctly by contrasting his quartet with the last major contributions of Dworkin and Selznick. In nearly all major respects this distinctiveness is also closely linked to his Scottishness.

These major works deserve to be treated as complementary rather than as rivals. There are, of course, important affinities. Selznick, Dworkin and MacCormick were all public intellectuals, though in quite different ways. Along with Hart, all three can be accommodated within the broad church of secular, political liberalism. For example, MacCormick and Hart had similar commitments to normative individualism, social democracy, the rule of law and (Hart more ambivalently) human rights, but his vision was more holistic, and his ethical and political views were more fully worked out than Hart's. His positions on public and private morality did indeed move closer to Dworkin's, but they were mainly developed in struggling with Hume, Smith, Stair and Kant, whereas Dworkin belongs to a markedly American intellectual tradition. Selznick, apprenticed in New York Trotskyite politics, was in later life a ‘communitarian individualist’, with an emphasis on the noun. All of them had clear value commitments (issues over positivism/anti-positivism are not about that); Dworkin's were grounded in objectivist morality, MacCormick's were more pluralist, and Selznick has been perceived as a relativist, perhaps because he emphasised cultural diversity but, like John Dewey, he believed that values could be objectively good in specific social situations. (Krygier, op. cit. at 224–26, 258). As was said above, they converged in making the aspirations of public morality the cornerstone of their final works. However, as jurists they were different in several key respects.

First, they had very different conceptions of the nature, scope and point of legal theory. Selznick was an American sociologist “with a generalizing tendency” who was interested in law. His primary interest was the fate of ideals in the course of social practice, and the role law played in fact in thwarting and promoting such ideals. He presented The Moral Commonwealth as a contribution to “humanist science”, ecumenical in respect of social science methodology, his central concern being “challenges to and sources of “moral well-being” __ of persons, institutions and communities __ in modern times” (Krygier, op. cit. at 3). Dworkin was au fond an American moral philosopher who treated legal theory as part of morality. He roughly distinguished between “doctrinal” and “sociological” perspectives on law and treated the latter as not philosophically interesting and of no practical value (e.g. Dworkin, 2006, p.98). This is remarkable in three respects: it lumps together all enquiries other than doctrinal as “sociological” __ used in a derogatory sense __ ignoring the fact that non-doctrinal approaches to law embrace all of the social sciences, and some humanities such as history. Even more remarkable it seemingly excludes wide swathes of philosophy as irrelevant to understanding law __ such as epistemology, logic and inferential reasoning as they bear on empirical questions and judicial fact-finding. I used to chide Neil for neglecting inferential reasoning from evidence and reasoning in sentencing, bargaining, (including plea bargaining), and other decisions in legal contexts. He made a few concessions but in his published writings he did not diverge far from the doctrinal tradition in equating “legal reasoning” with reasoning about questions of law. Thirdly, Dworkin claims that his legal philosophy is more “practical” even though it is mainly concerned with the truth conditions of propositions of law, especially in hard cases, ignoring the point that actual judges and other participants have many other practical problems that require intellectual resources and a capacity to reason.

Dworkin's vision as a jurist is narrow not only in its almost exclusive focus on adjudication, but also on a view of adjudication that treats the United States Supreme Court as the paradigm case. In short, in my view, Dworkin is an outstanding moral philosopher, especially in respect of public morality, but as a jurist his vision of what is involved in understanding law is far too limited. Under Dworkin's dichotomy, or Julie Dixon's more nuanced distinction between law as ideas and law as social facts, Dworkin falls on a restricted version of the doctrinal side and Selznick's on the sociological. But neither thinker can be so crudely pigeon-holed.

By contrast, Neil MacCormick considered himself to be a jurist and a lawyer with philosophical interests and skills. His view of philosophy was expansive in the Scottish tradition. In his Presidential Address to the Society of Public Teachers of Law on “The democratic intellect and the law” (5 Legal Studies 177 (1985)) he explicitly linked a broad conception of philosophy to the tradition of liberal education in Scottish universities and criticised those who restrict the idea to abstract philosophy, suggesting that ‘they lack any real interest in real law’ (id. at 181). He did not live to engage with Amartya Sen's The Idea of Justice (Cambridge, MA, 2009), but it is likely that he would have approved of Sen's critique of a tradition of philosophising and economic theory that is too abstract and removed from what actually happens to be of practical use in addressing pressing real-world problems.

MacCormick wished to transcend the doctrinal/social fact divide. He explicitly rejected Dworkin's suggestion that empirical questions about law are neither philosophically interesting nor of practical importance. (MacCormick, 2009, pp. 187–90). But he went further in maintaining that a rounded legal theory needed to encompass concepts, values and facts (and much else besides) and the relations between them. One of his central concerns was ecumenical, to build bridges between analytical, normative and empirical approaches to understanding and improving law in the modern world. Neil's broader vision and more inclusive conception of our discipline led him to treat fact-finding in adjudication, narrative coherence, rhetoric, constitution-making and many other “non-doctrinal” (not “sociological”) topics as falling within the province of legal theory. He was strongly supportive of empirical approaches to law as one crucial part of a broad conception of the discipline of law and of jurisprudence as its theoretical part. This inclusiveness is also grounded in the Scottish Enlightenment and he explicitly recognized Adam Smith as a forerunner of empirical and ‘law in context’ approaches (e.g. MacCormick, 1982, pp. 116–7). How far he succeeded in building sustainable bridges between these different lines of enquiry is a question for another occasion.

Second, the concerns of Selznick, Dworkin, and MacCormick led to different agendas for legal theorising. Dworkin's focus was on aspiration, very thinly on reality; Selznick's central concern was the inter-relationships between the two. MacCormick's vision of legal theorising encompassed a wider range of questions. At the level of moral philosophy they had overlapping interests in questions about objectivity, universalism, reason, the relations of means to ends and so on. However, their agendas for jurisprudence were significantly different. Selznick's main empirical work had focused on large organisations, bureaucracy, and institutions such as the Tennessee Valley Authority. He saw law as providing one of the most important means for realising ideals in “a moral commonwealth”. Key ideas included responsive law and institutional responsibility. His orientation and examples are mainly American. We have seen that Dworkin's conception of legal theory was quite abstract and narrowly centred on adjudication, also with a strong American bias. His political agenda was derived mainly from issues that reached the US Supreme Court or from live issues in American domestic politics, __ such as racial equality in the United States, abortion, positive discrimination, capital punishment, anti-terrorism legislation __ all important issues but seen through the prism of American politics and constitutionalism. After talking past each other for some time, Ronnie Dworkin once said to me: “You know Bill, I think we have different conceptions of the great issues of the age.” As a jurist I thought my main role was to contribute to understanding law in quite modest ways, but more broadly than Dworkin. Yet, in a way, he was right. Insofar as I have been professionally concerned with “the great issues of the age” these have included colonialism and post-colonialism, constitution-making, development, the North-South divide, world poverty, war, globalisation, and ethnocentrism. Ironically, MacCormick, the dedicated nationalist, was the least parochial thinker of the three.

Third, MacCormick's conception of law was more inclusive than the state-centrism of most contemporary jurists. His main personal interest was in the Rechstaat and the constitutive structures of the European Union, but his institutional theory explicitly makes space for some forms of non-state law and legal pluralism, as did Selznick's. However, the latter's focus was mainly at the level of “society” in the traditional sense. MacCormick also emphasised that law needs to be understood at sub-national, national, regional, sub-global, and genuinely global levels with all the messiness involved with patterns attributable to the influence of empires, diasporas, migration, and the diffusion of technologies. He interpreted the European Union as involving “a new constellation of institutional authority” and recognized that increasing interdependence meant the proliferation of new political forms. Unlike most leading jurists, MacCormick cannot be accused of what Amartya Sen called ‘global neglect’ (op. cit, 2009, pp. 24–7, 138–41).

It is, of course, a mistake to correlate theoretical ideas with nationality __ American Realism, English Analytical Jurisprudence, the Scottish Enlightenment are merely rough historical labels. MacCormick cannot be accused of taking positions because they were Scottish. He has been recognised as a “cosmopolitan nationalist” and as a jurist he was well-placed to cross the common law/civil law divide __ another mark of the distinctiveness of his thought. But, perhaps more important than any of these, is that the quartet sets out to provide a coherent “whole view” of understanding law, almost a ‘weltanschauung’, of a jurist who was geographically anchored but who had expansive intellectual interests __ and this is another aspect of the Scottish tradition.

In a little known work, MacCormick summed up his approach: “In my professional life, as in the European Parliament, I move in a completely international milieu, while remaining consciously an heir of the massively significant tradition of the democratic intellect and of Scots law. I hope that this means that I am very Scottish, but not narrowly so, and that my highly liberal nationalism is the other face of my internationalism.” (2002, quoted by Del Mar at p. 65)

MacCormick's “Scottishness” explains his background, but not his significance.