Monthly Archives: June 2016


With the events of the past few years, I have often wished that I could have a conversation with Neil, get his opinion on matters which were at the core of his life.   (I hasten to add that perhaps Nicola Sturgeon might have a deeper and more than my relatively casual longing for such an opportunity!)

Today, during one of my many  trawls through the Web, I came across an article on the subject of this piece by Professor  Cathryn Costello of St Antony’s College, Oxford University.     I am certain there must be other instances which bring Neil into the debate (as though, through his writings,  he had ever left it).  I found it on  Investor  Please note that I am offering this not to promote  a political stance but rather to illustrate the continued use of Neil’s work today.    

“I recall vividly the moment of encountering a beautiful idea in the library of University College Cork over 20 years ago. I happened across Neil MacCormick’s Beyond the Sovereign State – an articulation of the ideas he would later flesh out in a book Questioning Sovereignty. He showed, based on the EU, that indivisible sovereignty was a myth, that the sovereign state was a passing phenomenon, and that new ways of living together were possible. These forms of governance give people more say over their lives, with people working together across boundaries – local issues dealt with locally, national ones nationally, and transnational ones in regional institutions. MacCormick lived his ideas too, as an effective Scottish nationalist Member of the European Parliament.

“Ten years’ teaching EU law in England have been revealing. That small nations have greater say in the EU rather than out has been fairly evident in Ireland, and across Europe. One of the founders of European integration, Henri Spaak, is said to have described Europe as made up of small states, and some that realise they are small. Smaller states understand that they give up some formal autonomy, and gain greater influence. That understanding has never resonated here in England. Nor have the costs of borders and boundaries, which are stark in living memory on the island of Ireland, and the European continental mainland.

“Also missing is any understanding that the EU offers a new political space and opportunities for new coalitions. Mary Robinson intervened to make sure that when Ireland joined, there would be no Irish exception to the equal pay guarantee. Feminist activists used that commitment to catalyse an EU gender equality policy, in a process that showed the potential of the EU political space to create coalitions across Europe to foster equality. Many can see that the core of what EU membership offers – EU citizenship, the internal market, shared norms on equality, worker and environmental protection, and a bigger collective voice on the international level – do not undermine democracy, but foster it at multiple levels.

“The EU is flawed, of course, and its enlargement has changed its politics and workings. It is a good thing that the EU project is repeatedly questioned and contested – indeed Ireland’s repeat referendums on treaty change mean that public debate and understanding of the EU is enhanced. The popular rejection of the EU Constitutional Treaty was an important reminder that the EU project depends on repeated acceptance by the peoples of Europe. The euro crisis has shown a very different side to the EU, imposing stringent austerity. EU governments’ failure to agree a strong collective response to the refugee crisis has also cast into doubt its capacity to act. However, on the euro and asylum, the UK already enjoys a special position. It has repeatedly been accommodated in its demands for different treatment at various treaty negotiations.

“In the Brexit debate in contrast, “Take back control” was a jingoistic refrain, based on the false premise that “Brussels” makes laws over which the UK has no say. The campaign was characterised by lies “on an industrial scale” (as Professor Michael Dougan put it). The editors of the main EU law journal made a statement decrying the “normalising systematic dishonesty as a tool of political campaigning”. Brexiteers repeated lies on EU funding, member state vetoes over new members joining the EU, and the basics of the workings of the EU. The fact that the European Commission merely proposes legislation, which is then subject to acceptance by the national governments in the Council (by majority vote if agreement cannot be reached by consensus), and the European Parliament, was irrelevant. In spite of the UK’s overwhelming “success” in influencing the content of EU laws, none of the interventions explaining the workings of the EU seemed to hit home. That information came too late, after decades of “blaming Brussels” for EU laws, by politicians and the press of many stripes.

“Taking control over the immigration of EU citizens to the UK became the defining issue of the debate. The UK government has for some time made control over the numbers of (non-EU) immigrants a political goal. It set up a political aim it could not deliver, and in a UK experiencing swingeing cuts in welfare and public services, blaming immigration for all ills is now deeply ingrained. Labour offered no alternative, and no one really managed to refocus on the real problem – a de-regulated labour market that allows employers to pay whatever they like and import workers without any floor of labour rights. The UK is responsible for regulating its own labour market and social services, but again all parties have enabled the scape-goating of EU citizens living and working in the UK. Today, we are feeling deeply uncomfortable, if not unwelcome.

“The political irresponsibility of the Brexiteers is staggering. They offered an alternative that is a mirage – full access to the EU market without free movement of people. The will be impossible to deliver. Why would the EU member states accept this sort of relationship in a new association with the UK? What sort of precedent would that set for other wavering members? During the debate, even the Norwegian prime minister intervened to explain that full access to the EU market means accepting free movement of people and much EU legislation (over which Norway has no say whatsoever). Reciprocity never came into the debate either – that if the UK wanted to reject EU immigration, this would impact on the rights of UK nationals to live in the EU. Remarkably, the rights of British people living elsewhere in the EU never got a proper airing.

“What now for the UK? It is a sad and frightening time. The little Englanders may have destroyed the union. It was clear that Scotland would vote to remain, and then seek another independence referendum. Northern Ireland too has voted (albeit perhaps not as strongly as was anticipated) to remain. Perhaps we should have thought more seriously about Nicola Sturgeon’s suggestion that the referendum contain a lock to protect the voice of the constituent parts of the UK (requiring majority votes in England, Wales, Northern Ireland and Scotland). That would have been constitutionally ground-breaking in the UK, and against a head-count majority version of democracy, but it could have preserved the UK as a quasi-federal entity. The complete failure of any other-regarding positions to resonate in the English debate was troubling. Belfast and Dublin seemed like far away, foreign places.

“Divisions across nations, class and generations have been deepened. It seems two-thirds of younger voters were for Remain. It is hard not to rail at David Cameron’s awful hubris, Boris Johnson and Nigel Farage’s corrosive lies, the barely veiled racism and xenophobia the debate unleashed. Most of all, the debate entailed the duping of vast swathes of people who really do feel they will gain, in terms of voice and prosperity, out of the EU in a disintegrating United Kingdom. It seems many supported Brexit as they are angry and betrayed by the establishment. What is to come seems more likely to exacerbate rather than alleviate the predicament of the disposed and disadvantaged.

“For the rest of the EU, this will clearly be read as a vote for the populist right, and is a constitutional game-changer. I shudder to consider the contagion effect across Europe, particularly for the Le Pens and her like. For those of us who share Neil MacCormick’s vision, and that articulated by the late MP Jo Cox, the road ahead looks much more challenging. But their vision is the only honest hopeful one.”

Dr Cathryn Costello is Andrew W Mellon Associate Professor in International Human Rights and Refugee Law and a fellow of St Antony’s College, University of Oxford


[The  third  operation on my left hip  lowered my   inspiration and energy the past several months.  But I have now recovered enough to continue with this blog/memoir.  The startup will be slow but, I  hope, steady.] 

At the beginning of the MACCORMICKS, I explained that I would defer writing on the remarkable John MacDonald and Professor Donald Neil  MacCormick (grandson and great grandson of NEIL TORMORE)  story because they had been well  covered over the years in many media forms.

But two recent pieces in The Times (Scotland edition)  and The Herald  convinced me to break my planned order of presentation.  Both stories  extolled the many accomplishments of Professor Neil in the scholarly and political worlds.    And both ended with a description of  a campaign of the University of Edinburgh Law School to honour him in a quite unique way – by having four busts of Neil to be made by a well known sculptor, two placed at the entrance to the Law School and the others placed in two institutions in the City. The Law School web site follows:


The University of Edinburgh Law SchoolEnlighten…


Neil MacCormick Sculpture Fund

Help us create a lasting legacy to Professor Sir Neil MacCormick

Edinburgh Law School seeks to produce a collection of four busts, created by Kenny Hunter, generating a lasting tribute to Sir Neil MacCormick’s outstanding contribution to intellectual life in Scotland. Two of the busts will frame the refurbished Law School main entrance reflecting the duality of his life in academia and public affairs. The remaining single busts will be displayed at the Royal Society of Edinburgh and the Scottish National Portrait Gallery.

Donate to the Neil MacCormick Sculpture Fund here

Neil MacCormick bust front view Neil MacCormick bust side view Neil MacCormick bust back view
Casts of the sculptures by Kenny Hunter.

Read the proposal by sculptor Kenny Hunter for more information on the background to the sculptures

Professor Sir Neil MacCormick: A life in and beyond Old College

Neil MacCormick with book

Neil MacCormick was a great colleague and friend to many at Edinburgh Law School. Appointed to the Regius Chair of Public Law and the Law of Nature and Nations in 1972, he held this position until his retirement in January 2008  – more than half of his life.

An eminent figure in  academia and beyond, he made a significant contribution to legal philosophy and public affairs over 30 years.

The author of nine books and countless articles, his body of work is richly versatile. From his earliest publications, he forged a strong link between the ‘positivist’ emphasis on law’s social foundations and his commitment to a philosophy grounded in the democratic right of collective self-government.

Neil was adept at illustrating theory by practical example. He wrote with flair and insight about matters as diverse as statutory interpretation, judicial precedent, children’s rights, the right to die, official secrecy, obscenity, intellectual property and the relationship between domestic and international law. His style was engaging yet challenging, his tone conversational yet precise, his temper sometimes critical but always constructive.

“With the death of Neil MacCormick, the World loses one of those great minds and fantastic persons that make Humankind so precious. Scotland loses its best thinker since the Enlightened Philosophers and Europe loses a powerful intellectual vision of peace, solidarity and self-determination.”

Joxerramon Bengoetxea

Neil MacCormick in seminar 1970s

Neil’s intellectual curiosity and the depth of his involvement in public affairs meant that his legal philosophy was always a work in progress. Of the four later books produced under the rubric of Law, State and Practical Reason that provide an eloquent and lasting statement of his mature thought, Questioning Sovereignty (1999) is the most obvious link to his active political philosophy. It makes a path-breaking contribution to understanding the overlapping character of contemporary state, supranational (European Union) and sub-state (Scottish) law and politics, challenging the adequacy of a traditional conception of  sovereignty and national citizenship.

Neil’s academic accomplishment, and great service to the University and Law school (including two stints as Dean), was matched outside of Old College. He learned many lessons of liberal nationalism and active citizenship from  his father,  the founder of the modern Scottish nationalist movement. His subsequent contribution to the nationalist cause was immense. He was a leading SNP visionary for many years, playing a key part in reconciling the gradualist and fundamentalist wings of the Party. He penned a draft constitution for an independent Scotland, and made a persuasive case for a new state’s automatic membership of the European Union. He served with distinction as an Member of the  European Parliament in Brussels from 1999-2004. In 2007 he was appointed special adviser on European and External Affairs to Alex Salmond, the first SNP First Minister. This was a position he held until his death.

The two separate strands in Neil’s life ran in close harmony. This was as much about sensibility as substance.

As thinker and teacher he was always closely engaged with practical questions. In Edinburgh and internationally he did much to improve the standing of legal philosophy as an active component of a professional legal education rather than a niche field of interest. As a politician and public speaker, he retained the best of the academic tradition. His approach was inclusive rather than divisive, reasoned rather than emotive, open-minded rather than partisan, long-sighted rather than seeking immediate advantage.

“One story to illustrate the manner and style of Neil’s teaching, which also shows the nature of the man. In the 1975-76 session he arrived in Room 270 Old College to deliver a lecture to the class of Jurisprudence. As he took to the podium he removed from his wrist with a characteristic flourish what was evidently a lady’s watch. This produced catcalls from members of his audience. Neil smiled, explained that having broken his own watchstrap that morning he had borrowed his wife’s watch so that he could keep to his allotted 50 minutes with the class, and then used the class reaction to analyse the difference between social rules (men’s watches aren’t the same as women’s ones, lectures last for 50 minutes not the hour in the timetable) and legal rules. All that had been abstract and difficult for jurisprudence novitiates suddenly became pellucidly clear. Either Neil had thought it all out before, in which case the expansive gesture with which he removed the watch was perfectly timed to get the reaction he wanted; or, more likely, it was unplanned but he could react with instant humour to an unexpected situation, engage with his audience, and turn the whole thing intellectually to support what he had anyway wanted to say. Whichever, it was a brilliant moment of theatre that remains vivid in the memory nearly 35 years later. “

Professor Hector MacQueen

Neil won many of the glittering prizes. He was awarded a number of honorary degrees; he was three time recognized as the Scottish ‘MEP of the Year’; he was knighted in 2001 for his services to scholarship in law , and in 2004 he received the Royal Society of Edinburgh’s Royal Gold Medal for  Outstanding Achievement. Yet he remained an essentially modest, kind and generous man – someone who treated his many talents as their own reward and used them as best he could to enhance the many lives he touched.

Neil died on 5th April 2009. He was survived by his three children and by his second wife Flora, who remains a cherished friend of the Law School.





%d bloggers like this: