Rhetoric and The Rule of Law: A Theory of Legal Reasoning

Overview


When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognizable forms of arguments to produce predictable results? Or is legal reasoning mere "rhetoric" in the pejorative sense, open to use, and abuse, to achieve whatever ends unscrupulous politicians, lawyers and judges desire? If the latter what becomes of the supposed security of living under the rule of law?

This book tackles these ...

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Rhetoric and The Rule of Law: A Theory of Legal Reasoning

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Overview


When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognizable forms of arguments to produce predictable results? Or is legal reasoning mere "rhetoric" in the pejorative sense, open to use, and abuse, to achieve whatever ends unscrupulous politicians, lawyers and judges desire? If the latter what becomes of the supposed security of living under the rule of law?

This book tackles these questions by presenting a theory of legal reasoning, developing the author's classic account given in Legal Reasoning and Legal Theory (OUP, 1978). It explains the essential role syllogism plays in reasoning used to apply the law, and the elements needed in addition to deductive reasoning to give a full explanation of how law is applied and decisions justified through the use of precedent, analogy and principle.

The book highlights that problems of interpretation, classification and relevance will always arise when applying general legal standards to individual cases. In justifying their conclusions about such problems, judges need to be faithful to categorical legal reasons and yet fully sensitive to the particulars of the cases before them. How can this be achieved, and how should we evaluate the possible approaches judges could take to solving these problems? By addressing these issues the book asks questions at the heart of understanding the nature of law and the moral complexity of the rule of law.

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Product Details

  • ISBN-13: 9780199571246
  • Publisher: Oxford University Press, USA
  • Publication date: 11/2/2009
  • Series: Law, State, and Practical Reason Series
  • Pages: 304
  • Sales rank: 1,214,269
  • Product dimensions: 6.10 (w) x 9.10 (h) x 0.70 (d)

Meet the Author

Neil MacCormick was formerly the Regius Professor of Public Law and the Law of Nature and Nations (1972-2008) at the University of Edinburgh. he was appointed Queen's Counsel (QC) honoris causa, England and Wales in 1999 and was knighted in the Queen's Birthday Honours in 2001 in recognition of services to scholarship in Law. He is the holder of the Royal Medal for Humanities and Social Sciences, Royal Society of Edinburgh 2004. From 1999-2004 he served as Member of the European Parliament.

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Table of Contents

1 Prologue : institutional theory and the lawmaker's perspective 1
2 The rule of law and the arguable character of law 12
3 On the legal syllogism 32
4 Defending deductivism 49
5 Universals and particulars 78
6 Judging by consequences 101
7 Arguing about interpretation 121
8 Using precedents 143
9 Being reasonable 162
10 Coherence, principles, and analogies 189
11 Legal narratives 214
12 Arguing defeasibly 237
13 Judging mistakenly? 254
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