Law and Legal Reasoning (original) (raw)

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).

Neil MacCormick’s Second Thoughts on Legal Reasoning and Legal Theory. A Defence of the Original View

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.

Deduction, Legal Reasoning, and the Rule of Law. Book review of: Rhetoric and the Rule of Law. A Theory of Legal Reasoning. By Neil MacCormick

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.

Legal Reasoning and the Construction of Law

There are two competing views on what makes propositions of law true. The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts. These facts would be generated by legal rules which would operate autonomously, without need for human intervention. The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct the results of the autonomous rule application. The other view is legal constructivism, according to which propositions of law are true because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive: argumentation determines the contents of the law. This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified. Legal constructivism would be more plausible, in particular in the variant where the law is determined by the best actual legal argument. This position is defended by means of a brief exposition of the so-called ‘Erlanger-approach’ to legal justification.

Towards a Typology of Argumentation Based on Legal Principles

SSRN Electronic Journal, 2009

In this paper I analyze argumentation based on legal principles advanced in the justifica tion of legal decisions, explore the criteria for the assess ment of this type of argumentation and relate that to the general theory of law and legal argumentation. Starting from Alexy's principle theory and from the reactions some of his critics I will differentiate between various forms of argumentation based on legal principles.

Legal argumentation and the normativity of legal norms

2011

Legal argumentation has differing relations with the concept of normativity. On the one hand, normativity plays an important role in legal argumentation. This is because legal norms are elements of the arguments which go together to make up legal discourse. On the other hand, legal argumentation also plays a relevant role in grounding the normativity of legal norms. The normativity of legal norms is not only based on authority, but also on correctness, and correctness is achieved, at least in part, by compliance to rules governing legal argumentation. The aim of this paper is to analyse the most significant relationships between normativity and legal argumentation. To achieve this aim, the paper will consider four aspects: the normativity of the different kinds of legal norms, the rules of legal argumentation, the role played by the rules of legal argumentation in grounding the normativity of legal norms, and the role played by legal norms in legal argumentation.

[2008] Making the Law Explicit: The Normativity of Legal Argumentation

2008

Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law?