Rhetoric and the Rule of Law

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.

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.

Neil MacCormick was formerly the Regius Professor of Public Law and the Law of Nature and Nations (1972-2008) at the University of Edinburgh. he was appointed Queen's Counsel (QC) honoris causa, England and Wales in 1999 and was knighted in the Queen's Birthday Honours in 2001 in recognition of services to scholarship in Law. He is the holder of the Royal Medal for Humanities and Social Sciences, Royal Society of Edinburgh 2004. From 1999-2004 he served as Member of the European Parliament.

1. Prologue

2. Rhetoric and the Rule of Law

3. The Legal Syllogism

4. Defending Deduction

5. Universalising Deduction

6. Judging by Consequences

7. Being Reasonable

8. Arguing About Interpretation

9. Using Precedents

10. Legal Narratives

11. Principles, Consistency and Coherence

12. Arguing Defeasibly

13. Judging Mistakenly