Rhetoric and The Rule of Law: A Theory of Legal Reasoning
Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason) the late Neil MacCormick,
Publisher: Oxford University Press, USA
ISBN: 0199571244
DDC: 340.11
Edition: Paperback; 2009-11-02
Summary:
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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