(Review of) Neil Maccormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005)
Constitutional Commentary, Vol. 23, No. 1, pp. 121-137, 2006
17 Pages Posted: 24 Aug 2006
The central question in Rhetoric and the Rule of Law 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. 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. I am not, however, convinced by MacCormick's reconciliation claim. The main problem, as I see it, 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.
Keywords: MacCormick, legal reasoning, rule of law, deduction, universalization, consequentialist arguments
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