Guidance and Constraint: the Action-Guiding Capacity of Neil Maccormick's Theory of Legal Reasoning

34 Pages Posted: 14 Aug 2006

Abstract

In this article, I explore the action-guiding capacity of MacCormick's theory. More specifically, my aim is to determine whether this theory will take us further than the so-called legal method, and, if so, whether it can give us the kind of concrete guidance we need when confronted with a hard case. Suppose a judge or an attorney or an administrator really understood and could apply this theory. Would it be of any use to him when faced with a hard case? Would it be able to guide him to a decision when the interpretive arguments conflict with one another? To test the action-guiding capacity of the theory, I apply it to three or four cases from various jurisdictions. I argue that in many cases MacCormick's theory can indeed give judges the kind of concrete guidance they need. The reason why MacCormick's theory is successful in this regard is that it offers judges a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The importance of the latter fact can hardly be exaggerated, because it means that judges will be able to apply the theory even though they may lack a deep understanding of the relevant field of substantive law.

Keywords: MacCormick, legal reasoning, action-guiding capacity

Suggested Citation

Spaak, Torben, Guidance and Constraint: the Action-Guiding Capacity of Neil Maccormick's Theory of Legal Reasoning. Law and Philosophy, Vol. 26, pp. 343-76, 2007. Available at SSRN: https://ssrn.com/abstract=923450

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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