Is legal reasoning rationally persuasive, working within a formal structure and using recognisable forms of arguments to produce predictable results? 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. It explains the essential role syllogism plays in reasoning used
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Law exists, and has prima facie positive value. MacCormick a, Abstract. Introduction Neil MacCormick has deeply influenced contemporary legal theory. The importance of his studies on practical reasoning in general and on legal reasoning and legal argumentation in particular, on legal institutionalism, on sovereignty, on the theory of rights and on the rule of law can hardly be exaggerated.
It must be added that his researches on these different themes do not proceed along parallel lines but are pieces of a unitary perspective on law. This is a characteristic that is worth stressing in that it marks a major difference between MacCormick and most Anglo-American legal philosophy and jurisprudence scholars. For this purpose, it is appropriate to start from a brief presentation of the main theses upheld by MacCormick in his book. The first thesis is that legal reasoning is a particular case of practical reasoning.
According to MacCormick, it is not always possible to identify the one right answer; nevertheless, a theory of legal reasoning makes it possible to distinguish between justified solutions and solutions that are not justified. See also Atienza and La Torre , This means that the theoretical enterprise has, at least in the legal domain, an interpretative nature. The third thesis, strongly connected to the previous one, consists in recognizing ample room for legal principles in legal reasoning.
Unlike Dworkin, however, MacCormick denies that there is no break between legal principles and moral principles; the fact is that legal principles are characterized by having an indirect relationship with the rule of recognition. This makes the principles compatible with a legal positivistic view of law. The majority judges in the Donoghue case, for example, guaranteed the principle according to which producers have to answer for damage caused to consumers by their negligent behaviour.
We got there because to the persons which whom the decision resided the state of affairs represented by a society in which the 4 See MacCormick , The fourth thesis is that interesting analogies exist between the justification of judicial decisions and the justification of scientific hypotheses.
Scientific hypotheses have to make sense in the world and within a theory. According to Karl Popper — to whose thought MacCormick explicitly harks back — the scientist can confirm his or her explanation of natural phenomena connected to one another only through a suitable process of experimentation: he or she has to identify and set up some experiments that prove false all possible explanations of those phenomena except his or her own. This is not a conclusive demonstration, since at a future date the explanation given can in turn be proved false.
It is nevertheless just as evident that an explanation that overcomes the process of verification has to be preferred at least until proof is given to the contrary to explanations that have been proved false. The second aspect of the scientific justification that is worth stressing is that it is submitted not only to the constraints imposed by reality, but also to constraints imposed by some basic theoretical assumptions cf.
MacCormick , A judicial decision is justified if it can be assumed that it is preferable to the alternative decisions. But what kind of tests are we talking about? It is a consequentialist argument: it has to be shown that the consequences that could spring from a decision are preferable to the consequences connected to the alternative decision.
Finally it is a partly subjective argument: different people can reach different conclusions. Instead, coherence requires that every legal norm and every judicial decision be harmonized with the fundamental principles of the system. Schiavello The existence of some legal 4 norms rather than others is due to the fact that from a moral point of view at least some members of the community prefer or, at least, say they prefer the scheme of behaviour identified by such norms as against alternative schemes of behaviour.
The latter situations, nevertheless, can only be understood by presupposing the existence of a major group that accepts the norms from a moral point of view. In other words, while it is possible to hypothesize the case in which a given norm is approved from a moral viewpoint by everybody, it is instead unthinkable that the behaviour prescribed by a rule is not effectively approved by some from a moral point of view.
The point of being a positivist is not to deny obvious truths of that sort. The point is rather in the assertion that one does not have in any sense to share in or endorse these values wholly or in part in order to know that the law exists, or what law exists.
One does not have to believe that Soviet law or French law or Scots law is good law or the repository of an objectively good form of social order in order to believe that it is law, or to describe or expound or explain it for what it is. MacCormick , Analogous conclusions are also reached by Joseph Raz, who is convinced of the impossibility of accounting for law and legal interpretation putting in brackets the reasons that induce the participants to consider law morally correct or just While rejecting any explanation of the nature of law or legal interpretation which is true only if the law is morally good, we must also reject any explanation which fails to make it intelligible.
This means that to be acceptable an explanation of the law and of legal interpretation must explain how people can believe that their law, the law of their country, is morally good. Raz , Duff , ; , The fact that the participants are convinced that their own legal system is just does not constitute an adequate argument for defending the conceptual connection between law and morality. As a matter of fact, this argument simply shows that those people who are legally obliged to adopt a given form of behaviour also believe they are morally obliged to do so.
However, this does not prevent one from predicating, at one and the same time, the existence of a legal system and its immorality, unless one accepts an objectivist and cognitivist moral perspective in the strong sense, that is a demanding meta-ethical perspective which maintains a that it is possible to predicate the truth or falsehood of utterances that contain evaluations or moral appreciations; b that such utterances are true or false independently of our opinions and c that the canons of moral reasoning constitute a reliable method for attaining and increasing moral knowledge Boyd , If it is true that law presents an open texture, then all theories that identify law with norms are unsatisfactory.
The implicit pretension to justice of law The publication of the book on Hart symbolically marks the passage of MacCormick from the front of legal positivism to that of post-positivism. Many people hold recent legislation to be unjust. But surely it has to be supposed that those who laid it down honestly and for ostensibly good reasons thought it just. To make certain sorts of picketing offences or civil wrongs is to say that such conduct goes against important values.
To see why that is so, consider this. But why would this be absurd? Is it not because those who exercise power and discretion within a legal system must always at least purport to be acting on the basis of seriously considered values? MacCormick and Weinberger , Like MacCormick, Alexy defends the thesis of a relationship of a conceptual type between law and justice, and therefore challenges the legal positivism thesis of separability Alexy , ; a, ; , The anomaly lies in the fact that the constituent legislator qualifies the new republic as unjust.
What remains to be established is the nature of the anomaly that afflicts this provision. We will proceed, following Alexy, by exclusion. One could endeavour to link the defect highlighted to a trivial question of political appropriateness: just as it is not advisable, during an electoral campaign, for the candidates to dwell on the cuts to government spending that they will propose once they are elected, so it is advisable for a legislator not to render explicit, in the text of the law that he or she is about to promulgate, that it is an unjust law.
In relation to the concrete case mentioned by Alexy, it would hence be merely unwise for the constituents to stress the fact that the nascent republic is unjust. However, this explanation is not convincing.
The two situations do not appear to be superimposable. The fact is that the injustice clause appears absurd, while a mention of the tax cuts may be unwise or politically risky but not absurd. A second possibility is that the article in question is criticisable from a moral point of view: it is not a good thing, from a moral point of view, for a state to be explicitly founded upon injustice. However, this possibility is not entirely convincing either.
The fact is that what really may be open to moral reproof are the norms that perpetrate specific injustices for instance norms that exclude certain ethnic group from the enjoyment of certain rights rather than a mere petitio principii claiming that the state is unjust. A further hypothesis is that the article in question, breaking away from a well-rooted and widespread convention relating to the writing of constitutional texts, is impaired by a conventional 7 flaw.
Certainly, it is also a convention that a Constitution does not proclaim the injustice of the state. Nevertheless, it is not only a convention. Indeed, by their very nature conventions, even the most deeply rooted, can be replaced by others. The impossibility of qualifying a state as unfair in an article of its very Constitution instead appears to be a constitutive presupposition of the praxis of constituent legislation.
Having discarded these hypotheses, Alexy affirms that the article in question is impaired by a conceptual flaw. But what is a conceptual flaw? First of all, in the case which we are dealing with, it is not a logical contradiction. The utterance that expresses the first article of the Constitution of the imaginary state is not, technically, contradictory.
Nevertheless, this utterance is eccentric and incongruous. In short, affirming that it is raining and at the same time explicitly declaring that one does not believe it is raining annuls the act of affirming something, just as promising something and at the same time declaring that ones has no intention of keeping the promise annuls the speech act of promising Austin The story is well-known: the animals on a farm rebel against the owner, and once they have freed themselves of his yoke on the farm create a new order that can be summed up in the principle that all animals are equal.
Very soon, the ideals that have led the animals to rebel are adapted to the demands of the pigs, which acquire a position of dominion and establish a regime as oppressive as the previous one. The interesting aspect, for our purposes, concerns the way in which the new oppressors have reckoned with revolutionary values. This thesis is expressed very clearly by MacCormick: 8 One can just about imagine for example a public statement made around by some Nazi official about the desirability of re-settling Jews outside Germany, and some argument being offered for this.
A proposal that the deportation of these persons take place, not for mere resettlement, but for systematic gassing and incineration is barely imaginable in any public forum. Even in the dreadful times in which this was actually done, albeit by the orders of a domestically unchallengeable one-party dictatorship, no public justification or even acknowledgement of the extermination programme was ever attempted. There are things which humans can do yet which it appears they cannot avow.
They certainly cannot avow the doing of them in the name and forms of law. MacCormick , It is worth noting that a similar argument had already been put forward against Hart by Lon Fuller.
However, it does not seem to me that this argument — which is of an empirical-sociological nature — can be used to disprove the thesis of the separability between law and morality and, in general, the legal positivism that defends this thesis. MacCormick and Alexy use the argument of the implicit pretension to justice of law against the thesis of the separability between law and morality and, accordingly, against legal positivism.
This argument, nevertheless, misses the target. It cannot for instance prevent a legal system as a whole or one or more norms belonging to that system from being profoundly unjust. It is unfortunately compatible with very great iniquity. The first is that, unless one accepts a strong meta-ethical objectivist conception, reasonable disagreements on the moral minimum content of law are admissible.
This point will be dealt with more at length in the next section on the matter of the one right answer thesis. The second doubt forces one to wonder what the consequences are of denying the qualification as law of profoundly unjust norms.
As Michael Hartney very effectively explains: Legal positivism is simply a theory about what counts as law and nothing else: Only rules with social sources count as legal rules. Some theorists may be legal positivists because they are moral skeptics or utilitarians or political authoritarians or because they believe all laws are commands, but none of these theories are part of legal positivism. Hartney , 48, italics added Further, the decision of legal positivism to distinguish clearly between the existence of law and its compulsoriness strengthens the awareness of each individual that he or she can always choose the moral option of not obeying the law.
This theory of legal reasoning is 9 MacCormick , A critical reconstruction of this statement by MacCormick can also be found in Dickson , In legal reasoning and in practical reasoning in general there exists an ineliminable space for practical disagreement. The distinction between easy cases and hard cases is not the presupposition but the result of interpretative activity; this means that the decision to treat a case as easy or hard is in turn an interpretative choice.
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