Interpretation and coherence in legal reasoning stanford. Legal reasoning is uniquely important as no entrant studies law. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only hart, but also writers like neil maccormick and joseph raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. Legal reasoning is to be understood as a form of practical reasoning concerning these very issues. As the title implies, maccormick sets himself an ambitious task. Hart, noted professor of jurisprudence at oxford university from 1952 to 1968. These questions are central to the study of jurisprudence, and are critically examined in this book. If we had such a useful, normative method, it would surely be. Provides the authors longawaited successor to his classic account of legal reasoning in legal reasoning and legal theory oup, 1978. Legal reasoning and legal theory clarendon law series. Rhetoric and the rule of law a theory of legal reasoning the late neil maccormick law, state, and practical reason. Everyday low prices and free delivery on eligible orders. Oxford scholarship online requires a subscription or purchase to access the full text of books within the service. A typical definition of the concept of legal reasoning has been given by neil mccormick.
Legal reasoning and legal theory neil maccormick oxford university press. Legal reasoning and legal theory by neil maccormick nook. Institutions of law offers an original account of the nature of law and legal systems in the contemporary world. Neil maccormick, legal reasoning and legal theory philpapers. Neil mccormick, law, morality, and positivism 1981. Pdf neil maccormicks second thoughts on legal reasoning. It is important that the mechanism of legal reasoning should not be concealed by its pretense. In contrast, philosophy of law is interested in the general question. 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.
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. Some legal philosophers have argued that legal reasoning is not as. Neil maccormick s second thoughts on legal reasoning and legal theory. Thus, this book teaches and illustrates the underlying skills of legal reasoning and analysis that are integral components of effective legal writing. Frederick schauer, formalism yale law journal 1988 duncan kennedy, form and substance in private law. Values like autonomy and freedom of conscience, mccormack thinks. View logic and legal reasoning in law research papers on academia. While particularly relevant to the tasks of lawyers and judges, the requirements of legal reasoning also affect the legislator because addition of new rules or modification of existing ones needs to be. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically.
Harts the concept of law, it claims that a theory of law like harts requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. Legal reasoning and interpretation routledge encyclopedia. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. Legal reasoning and legal theory by neil maccormick. Sir donald neil maccormick, qc, fba, frse was a scottish legal philosopher and politician. In his theory of legal justification neil maccormick tries to formulate a solution for. This paper will deal only with neil maccormicks theory of legal reasoning, and more specifically with his theory of interpretation. Rationality in action has at least two requirements. Philosophy of law, reading course fall 2014 keith e. An individual user may print out a pdf of a single chapter of a monograph in oso for personal use. Four quadrants of jurisprudence what place for nationalism in the modern world. In countries like the united states and england, where thought about law has focused primarily on adjudication, legal reasoning is often identified with the intellectual processes by which judges reach conclusions in deciding cases. Any inquiry into the realm of legal theory must necessarily expose the reader to. Jan 01, 1978 sir donald neil maccormick, qc, fba, frse was a scottish legal philosopher and politician.
Neil maccormick, legal reasoning and legal theory philpapers james lee jurisprudence 1 1. In this paper i will dwell on one of the most important points in maccormicks thought. Evolution and revolution in theories of legal reasoning. Hart established a worldwide reputation through his powerful philosophical arguments and writings in favor of liberalizing criminal law and applying humane principles to punishment. Not available for loan book english show 0 more libraries civil ldgal american history. Legal judgment and moral reservation jeremy waldron1. Legal reasoning and legal theory clarendon law series maccormick, neil on. This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences.
If dworkin is correct, then thinking about law in institutional terms, as neil. Paper presented at the conference legal reasoning and european laws. Neil maccormicks 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. A first report pdf 373kb the scottish national party wins the largest number of seats in the. The nature of law stanford encyclopedia of philosophy. Legal reasoning for him is the process of argumentation as a process of justification. Sir neil maccormick, who has died of cancer aged 67, was a prominent figure in scottish nationalism and european politics and a renowned legal philosopher.
Of course the very features of institutionalization and formality create important disanalogies between. Neil maccormick on interpretation, defeasibility, and the. The subject of legal reasoning appears to occupy the more practical end of the spectrum of jurisprudential theorising. Answering such questions is the business of a theory of legal reasoning. In the next section i will present my conceptual definition of legal positivism. Aquinass theory of conscience and legal reasoning springerlink. Lev, this i is an attempt to describe generally the process of legal reasoning in the field of case law and in the interpretation of statutes and of the constitution. Buy legal reasoning and legal theory clarendon law series new ed by maccormick, neil isbn. Legal reasoning and legal theory, by neil maccormick. K the theory presented has been that the judicial duty to do teasoning according to law is a highly complex one. Fundamentals of legal argumentation request pdf researchgate. Legal aptitude answers are highlighted in bold letters questions from law entrance examinations conducted by various law schools and law colleges are included 1. Legal reasoning seems to be most distinctive in those societies that have experienced the emergence of a special professional class of lawmen, with its own special professional traditions and institutional values.
In this substantially revised second edition, neil maccormick delivers a clear and current introduction to the life and works of h. Request pdf fundamentals of legal argumentation this book is an updated. Oxford university press 2005 abstract this book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. Logic and legal reasoning in law research papers academia. In countries like france and germany, on the other hand, where thought about law has focused primarily on codificationthat is. He was a member of the european parliament 19992004, member of the convention on the future of europe, and officer of the scottish national party.
Legal reasoning and legal theory revisited springerlink. Earlier versions of the central argument are contained in an essay entitled is there a. Sir donald neil maccormick qc fba frse 27 may 1941 5 april 2009 was a scottish legal philosopher and politician. Legal reasoning is therefore not only a special case of practical reasoning, but a specially public one. Download for offline reading, highlight, bookmark or take notes while you read rhetoric and the rule of law. Legal reasoning is all about thinking like a lawyer in a given situation. In the fourth book of a quartet on law, state and moral reasoninga book. This book tackles these questions by presenting a theory of legal reasoning. It provides the definitive statement of sir neil maccormicks wellknown institutional theory of law, defining law as institutional normative order and explaining each of these three terms in depth. Legal reasoning and legal theory, clarendon press, oxford, 1978, who says that legal reasoning is a special, highly institutionalized and formalized, type of moral reasoning. Legal reasoning and legal theory oxford scholarship. The late professor sir neil maccormick 19412009 was one of the twentieth centurys most renowned jurists, called by many the greatest scottish national party intellectual. Legal reasoning, writing, and other lawyering skills.
This paper offers a diachronic reconstruction of maccormick s theory of law and of legal argumentation. Since its first appearance in 1979, this work has established. Legal reasoning and legal theory the obligation of reparation. Offers the authors views on two of the major issues in current legal philosophy the nature and role of interpretation and the value of the. By andrew sunter in rhetoric and the rule of law, neil maccormick reflects on a central issue in the debate on the nature of legal reasoning. Neil maccormicks second thoughts on legal reasoning and legal theory.
Rhetoric and the rule of law paperback the late neil. Legal writing is challenging, in part, because the clarity and effectiveness of the. Surely if anything matters in our attempts to understand law, it matters how judges do andor should decide cases, and that we have an account which adequately explains and can perhaps be used to guide or justify their activities. Bertea, law and legal reasoning, northern ireland legal quarterly 59, 2008, 419 has espoused since his seminal work on legal reasoning, and this is the thesis by w hich a. This study focuses on current jurisprudential debate between the positivist views of herbert hart and the rights thesis of ronald. Legal reasoning legal reasoning is the particular method of arguing used when applying legal rules to particular interactions among legal persons. This paper offers a diachronic reconstruction of maccormicks theory of law and of legal argumentation. An introduction to legal reasoning chicago unbound. A theory of legal reasoning ebook written by neil maccormick. Law, morality and positivism maccormick 1981 legal. Legal reasoning and legal theory revised a defence of the.
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