Legal reasoning and legal theory (original) (raw)
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Neil McCormick’s Theory of Legal Reasoning and Its Evolution
Archiwum Filozofii Prawa i Filozofii Społecznej, 2019
This paper traces, examines and demonstrates Neil MacCormick’s theory of legal reasoning and its evolution. MacCormick’s views shaped gradually, therefore his theory could be divided into two main stages. Thus, a diachronic approach is justified. The aim of this paper is to analyse the difference between the theses of the theory of legal reasoning explained in Legal Reasoning and Legal Theory (1978) and general revisions to this theory marked in Rhetoric and the Rule of Law (2005). According to the author, the most important change in MacCormick’s theory of legal reasoning is the re-examination of the role of deductive reasoning in the process of judicial reasoning. This change leads to extension of the logical aspects of MacCormick’s theory of legal reasoning (legal syllogism) to include rhetorical aspects (argumentative character of law) and ethical aspects (the idea of the rule of law).
This paper offers a diachronic reconstruction of MacCormick’s theory of law and of legal argumentation; in particular, two connected points will be highlighted in which the difference between the perspective upheld in Legal Reasoning and Legal Theory and the later writings is particularly marked. The first point concerns MacCormick’s gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its different versions. The second point concerns MacCormick’s acceptance of the one right answer thesis and the consequent thinning of the differences between MacCormick’s theory of legal reasoning and that of Ronald Dworkin and of Robert Alexy. The intent, however, is not only to describe this change in MacCormick’s thought but also to attempt a defence of the original view that we find in Legal Reasoning and Legal Theory.
2006
I. INTRODUCTION Neil Mac Cormick first put forward his thoughts on legal reasoning in a book entitled Legal Reasoning and Legal Theory (hereinafter Legal Reasoning). 3 MacCormick's aim in Legal Reasoning was to explain the nature of legal argumentation as it manifests itself in court decisions. 4 He focused on the legal systems of the United Kingdom, specifically English and Scots law, although he suggested that the claims he made about UK law deserve to be tested with respect to other legal systems, at least insofar as they are grounded in more general philosophical • 5 1. Regius Professor of Public Law and the Law of Nature and Nations. 2. Associate Professor in Jurisprudence, Department of Law, Uppsala University (Sweden). I would like to thank Brian Bix for helpful comments on this review. 3. NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (2d ed. 1994) (hereinafter, MACCORMICK, LRLTJ. 4. /d. at 7. 5. /d. at 8. 6. /d. at 15. 7. /d. at x.
HB) ISBN-13 978-1-4020-4936-1 (HB) ISBN-10 1-4020-4939-0 (e-book) ISBN-13 978-1-4020-4939-2 (e-book) Published by Springer,
Two Faces of Legal Reasoning: Rule-Based and Case-Based
In this chapter I would like to substantiate the thesis that legal reasoning is never purely rule-based nor case-based, as it always requires a kind of interplay between abstract rules and concrete legal decisions. In order to do so, I begin by formulating two thought experiments: one, in which a highly abstract normative order is imagined and its limitations analysed; and the other, which considers a normative order consisting of particular cases only and pinpoints its failure to deliver a solid foundation for legal decisions. I further argue that the problematic features of purely abstract and purely concrete normative systems detected in both experiments are also present in, respectively, the civil law and the common law traditions. I conclude by indicating that there is no functioning legal system without a constant “dialogue” between the abstract and the concrete.
The Inference to the Best Legal Explanation
Oxford Journal of Legal Studies, 2019
Courts use inferences to the best explanation in many contexts and for a * Professor of Philosophy of Law, Edinburgh Law School. I am grateful to Luís Duarte d'Almeida for discussion on early drafts of this article and for comments by Eveline Feteris, John Gardner, Jaap Hage, Euan MacDonald, Neil Walker, and two anonymous OJLS referees. Earlier versions were presented at the Universities of Edinburgh, Maastricht, Pará, and Pompeo Fabra and the discussion in each of those occasions had a clear and positive impact on the final product. 1 [1991] 2 AC 548. 2 ibid 578. 3 ibid. 4 ibid at [G]. 5 ibid 578-579. 6 ibid 579 at [B]-[E].
WHAT LEGAL REASONING IS ALSO ABOUT (2019)
2019
Legal reasoning is about the creation, application and extinction of legal norms (rules, standards or principles). Legislators and lawmakers argue about the creation and extinction of norms, or, more technically, about the enactment and abrogation of norms by the competent legal authorities. Judges and other officials argue about the application of norms, on the basis of the interpretation of the relevant legal texts. In the judicial context, in particular, participants make arguments about the relevant facts and the application of law to these facts. Legal arguments divide into evidentiary and interpretive ones, where the former point at the reconstruction of what happened and the latter point at the ways in which legal texts can be interpreted. Both are necessary to the application of law.