Rhetoric and the Rule of Law: A Theory of Legal Reasoning.

AuthorSpaak, Torben
PositionBook review

RHETORIC AND THE RULE OF LAW. A THEORY OF LEGAL REASONING. By Neil MacCormick. (1) Oxford: Oxford University Press, 2005. Pp. xvi + 287. $74.00.

  1. INTRODUCTION

    Neil MacCormick 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 premises. (5)

    Focusing on the process of justification, MacCormick argued that in the final analysis legal reasoning is about giving good justifying reasons for decisions. (6) He explained that legal reasoning is essentially about applying rules to facts: "The simple but often criticized formula 'R + F = C', or 'Rule plus facts yields conclusion' is the essential truth." (7) Accordingly, he took deductive reasoning in the form of a practical syllogism to be of central importance tance in legal reasoning: To justify a decision is to apply a pertinent rule to the facts of the case. (8) He was, however, careful to point out that there is more to legal reasoning than deduction and that the non-deductive elements, such as the weighing of arguments in difficult cases of statutory interpretation, are the ones most in need of study. (9)

    MacCormick also stressed the importance of universalizability in legal reasoning. He actually spoke of "formal justice," not of "universalizability," but the idea appears to be essentially the same in both cases, namely that the judge "must decide today's case on grounds which [he is] willing to adopt for the decision of future similar cases, just as ... [he] must today have regard to his earlier decisions in past similar cases." (10) We might say that on this count, MacCormick follows in the footsteps of Herbert Wechsler. (11)

    Since any ruling can be universalized, the judge must be able to decide which of two or more universalized rulings he should choose. MacCormick called this the problem of second-order justification and explained that it must involve two distinct types of interpretive argument, namely (i) arguments from consistency and coherence, and (ii) consequentialist arguments. (12) For, he explained, any ruling must make sense both in the legal system and in the world. A given ruling meets the consistency requirement if, and only if, it does not contradict any other norm in the legal system; it meets the coherence requirement if, and only if, it makes sense in the legal system. (13) Consequentialist arguments, on the other hand, ask the judge to choose the ruling that yields the best consequences. This type of argument comes into play only if the arguments from consistency and coherence do not yield an answer to the interpretive question.

    In Rhetoric and the Rule of Law (hereinafter "Rhetoric"), MacCormick sums up the developments of his views on legal reasoning since the publication of Legal Reasoning. Here he maintains, inter alia, the following: in the case of statutory (and constitutional) interpretation, the judge should begin with a textual analysis of the relevant provision; if a textual analysis does not yield a determinate result, he should proceed to consider systemic arguments; and if neither textual nor systemic arguments nor any combination of these arguments yields a determinate result, he should resort to teleological (or purposive) arguments (pp. 121-42). As should be clear, this normative claim is a refined version of MacCormick's earlier claim that the judge should begin with arguments of consistency and coherence and, if necessary, proceed to consider consequentialist arguments.

    The central question in Rhetoric, however, is whether we can square a belief in the Rule of Law, which entails a belief in legal certainty, with a belief in (what MacCormick refers to as) the Arguable Character of Law, that is, the notion that the content of law depends on argumentation:

    Argument from commonplace propositions or starting points (topoi) [In this case the possibility and value of the Rule of Law, and the notion that the content of law depends on argumentation] is common in rhetoric, but the commonplace truths of everyday thinking may sometimes appear to be in flat mutual contradiction.... The idea of the arguable character of law seems to pour cold water on any idea of legal certainty or security. If there can be no legal certainty, how can the Rule of Law be of such value as is claimed? What prospect can there be of reconciling these two? (p. 13) MacCormick offers an affirmative, albeit qualified, answer to this question: although we can usually rule out some proposed solutions to a legal problem as being clearly wrong, there is usually more than one correct solution to any given legal problem; legal certainty under the Rule of Law is defeasible legal certainty; and the right to argue one's case within this framework is grounded in respect for the Rule of Law (pp. 28, 277-80).

    He points out that his reconciliation claim, as I shall refer to it, depends on the assumption that the orthodox view about legal reasoning--according to which "laws do constrain adjudicators, because they are relatively determinate, and can be applied within a framework of justifying arguments that lead to reasonable predictability of the uses of state coercion" (p. 30)--is tenable, and he therefore sets himself the task of showing that the "orthodox view" really is tenable (pp. 30-31). To do that, he devotes the rest of the book to a discussion of various aspects of legal reasoning, including the role of deductive reasoning, the requirement of universalizability, the nature and importance of consequentialist arguments, the ranking of the various interpretive arguments, the use and weight of precedents, the idea of reasonableness, the concepts of coherence and defeasibility, and the possibility of judicial mistakes. As one might expect, he arrives at the conclusion that the orthodox view about legal reasoning is indeed tenable.

    I appreciate MacCormick's efforts to put (the theory and practice of) legal reasoning in the larger scheme of things, and I like the fact that MacCormick has an actual court case for every occasion--no matter what the issue is, MacCormick has a case that illustrates it. I am not, however, convinced by MacCormick's reconciliation claim. The main problem, as shall be argued, is that the notion of what is rationally arguable is rather more indeterminate than MacCormick thinks. I also point to some difficulties in MacCormick's accounts of deductive reasoning, universalization, and consequentialist reasoning in law.

    I begin with a consideration of MacCormick's accounts of the role of deduction in legal reasoning (Section 2), the idea of universalization (Section 3), and the nature and role of consequentialist arguments (Section 4). I then turn to a consideration of MacCormick's reconciliation claim (Section 5).

  2. DEDUCTIVE REASONING

    MacCormick maintains that deduction plays an important part in legal reasoning and he devotes two chapters to elaborating and defending this view. He does not explain what, exactly, deduction is, but we may say that a valid deductive argument is an argument in which the premises entail the conclusion: If the premises are true, then the conclusion must be true. (14)

    MacCormick's basic claim is that legal reasoning has deductive, specifically syllogistic, structure (p. 43):

    (Premise 1) If OF [Operative facts], then NC [Normative Consequences]

    (Premise 2) OF

    (Conclusion) NC

    He explains that the legal syllogism plays an important structuring role in legal thought because it is within the syllogistic framework that arguments make sense as legal arguments:

    We go back to the point about what could possibly count as applying a statute at all. We go back to the issue of a conceivable procedure for raising a case with a view to implementing a statute. That has an intrinsic logic of its own within which it is clear why the interpretative points and arguments have a real bearing as legal arguments. Moreover, this helps to remind us why it is so important for a lawyer to be meticulous in sifting through every one of the universals or concepts deployed in a statute, and figuring out their relevant ordering and mutual interaction or super- and subordination. Cases are won and lost through meticulous care--or its lack--in following through every concept that counts, and testing rigorously for each one what particulars will count as an instance of that concept (p. 42). Although he does not say so, it is clear that MacCormick is concerned with the process of justification, which (obviously) concerns the justification of a legal...

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