ABSTRACT
It is not easy to say succinctly what the Edinburgh School of legal theory, epitomized by the work of the late Neil MacCormick and Zenon Bańkowski, represents. It is not a specific theoretical position, nor is it a uniform commitment to a specific methodology such as ‘ordinary language philosophy’ or ‘analytical jurisprudence’. From the outside at least, it may look like a rather eclectic mix of, among other things, formal and informal analysis of legal language, constitutional theory or catholic theology; a place where virtue ethics can meet legal formalism and discuss their differences in a friendly way. Its members are as likely to be inspired by catholic social doctrine as by Karl Marx, Adam Smith, Hannah Arendt, Niklas Luhmann or H.L.A. Hart. In seminars or in the common room, one could find oneself as likely to be discussing the implications of the Factortame decision as astrophysics, and Gödel’s theorem is as often evoked as Donoghue v. Stevenson. And yet, those who had the privilege to study or work with MacCormick and Bańkowski will none the less insist that there is a very specific flavour, a ‘thinking style’, that weaves through all these different strands and combines them to become something that is ultimately more than the mere sum of its parts, not a postmodern arbitrariness but rather a unity in diversity that pays attention to the particular voice that different schools of thought and thinkers within these schools can contribute to our understanding of law, while maintaining the ability to link these back to the tradition of ‘grand theorizing’ and universal accounts of what it means to live a life in the presence of laws and being subject to them. This intellectual attempt to unify prima facie disparate traditions of thought finds its correspondence in their analysis of one important substantive part of their work – the analysis of the legal system of the European Union.
