In the first phase i refer to legal reasoning and legal theory maccormick 1978. Thomas aquinas and natural law theory natural law theory like legal positivism has appeared in a variety of forms and in many guises. Read legal reasoning and legal theory by neil maccormick available from rakuten kobo. Answering such questions is the business of a theory of legal reasoning.
Can legal decisions be justified by purely rational argument or are th. Buy legal reasoning and legal theory clarendon law series new ed by maccormick, neil isbn. 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. Neil maccormicks second thoughts on legal reasoning and. It stands firmly on its own as a contribution to an extensive literature. Introduction neil mac cormick first put forward his thoughts on legal reasoning in a book entitled legal reasoning and legal theory.
In this substantially revised second edition, neil maccormick delivers a. The meaning of a legal rule and how it should be applied are often subject to multiple interpretations. Since its first appearance in 1979, this work has establi. Jun 27, 2019 maccormick legal reasoning and legal theory pdf vincent luizzi.
Maccormicks latest views of legal reasoning and the. 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. Maccormick develops such a theory, and calls the particular type of argument embraced by it an argument of secondorder justification. 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. Reasoning from either rules or principles must always involve some process of interpretation, so how does interpretive reasoning enter into the practical reason of law. Legal reasoning and legal theory neil maccormick oxford. Surely if anything matters in our attempts to understand law, it matters how judges do and or should decide cases, and that we have an account which adequately explains and can perhaps be used to guide or justify their activities.
Pdf legal reasoning and legal theory deep kapadia academia. The first point concerns maccormicks gradual break with legal positivism, and more specifically the. Neil maccormick has deeply influenced contemporary legal theory. Legal reasoning and legal theory clarendon law series maccormick, neil on. According to maccormick, in deciding a case according to law, courts should first of all interpret the existing law in order to establish a coherent view of.
The principles interact with the rules, underpin them, hedge them in, qualify them, justify the enunciation of new rulings as tested out by consequentialist arguments, and so theoty. This paper offers a diachronic reconstruction of maccormicks theory of law and legal argumentation. It is important that the mechanism of legal reasoning should not be concealed by its pretense. When the meaning of a legal rule is ambiguous, lawyers use legal reasoning to argue for.
Now available in paperback, and with a new foreword by the author, this popular book will continue to be of use to students and teachers of. Legal reasoning and legal theory by neil maccormick. Jul 19, 2012 thus, i will first present the main features of maccormicks revised theory of legal reasoning, clarifying its nature and scope and showing that this revised theory makes legal reasoning a constitutive element of the concept of law. Legal reasoning and legal argumentation, from a practitioners point of view, is at one level relatively easy to describe and to define. An institutional theory of law new approaches to legal.
Maccormick provides a critical analysis of the dworkin position while also modifying harts. Pdf neil maccormicks second thoughts on legal reasoning. Once we have established that fact, we will abandon the traditional image of maccormick as the torchbearer of legal positivism. See hume, enquiry concerning the principles of morals many editions appendix i and a treatise of human narure books i and ii. Chapter 10 kelsens theory of law 155 chapter 11 the integrity and interpretation of law 173 chapter 12 social theory and law 191 chapter marx, marxism and marxist legal theory 215 chapter 14 liberalism and law 235 chapter 15 feminist legal theory 247 chapter 16 critical legal studies 267 chapter 17 critical race theory 289. 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. I will then argue that this conceptual link found to exist between legal. This chapter explains in some detail how these insights are developed in maccormicks institutional theory of legal reasoning and legal justification. Maccormick, legal reasoning and legal theory oxford 1978. Legal reasoning and legal theory maccormick, neil download. Legal reasoning and legal theory clarendon law series. This book tackles these questions by presenting a theory of legal reasoning, developing the authors classic account given in legal reasoning and legal theory oup, 1978. In this work i address a particular aspect of maccormicks revised theory of legal reasoning, namely, the way his latest views on legal argumentation carry implications for the concept of law.
Rm dworkin, in praise of theory 1997 29 arizona state lj 353. Neil maccormick description this is an interdisciplinary course drawing on material from the separate. Legal reasoning and legal theory revisited springerlink. The importance of his studies on practical reasoning in general and on.
Care has been taken to make the legal elements of the book readily accessible to nonlawyers, and the philosophical elements to nonphilosophers. Norms in neil maccormick eds legal reasoning and legal theory oup 1994. Whether youve loved the book or not, if you give your honest and detailed thoughts then people will find new books that are right for them. This paper offers a diachronic reconstruction of maccormick s theory of law and of legal argumentation. Legal reasoning and legal theory revised a defence of the. 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. Legal reasoning and legal theory, by neil maccormick by stephen kloepfer. An introduction to legal reasoning university of chicago. Neil maccormick on interpretation, defeasibility, and the.
This article provides a new insight into legal reasoning by linking dworkins theory with french existentialism. What is needed, of course, is a theory of legal reasoning capable of leading to sound legal conclusions in situations where the practical utility of logic is spent. Theories of law natural law, legal positivism, the. Carbonell reconstructs, in a critical fashion, maccormick s concept of coherence in legal reasoning, and places it in the context of his theory of legal pluralism. Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences. A satisfactory theory of legal reasoning requires and is required by a satisfactory theory of law. Legal reasoning and legal theory, by neil maccormick. Legal reasoning and legal theory oxford scholarship. Thus, i will first present the main features of maccormicks revised theory of legal reasoning, clarifying its nature and scope and showing that this revised theory makes legal reasoning a. A theory of legal reasoning requires and is required by a theory of law. Reasoning by precedentbetween rules and analogies legal.
Pdf on law and legal reasoning download full pdf book. The subject of legal reasoning appears to occupy the more practical end of the spectrum of jurisprudential theorising. Maccormicks contributions to these fields are obviously interconnected, and maccormick himself has stressed at several junctures the important mutual connections between these three topics. These questions are central to the study of jurisprudence, and are thoroughly and critically examined in legal reasoning. It also recognizes that dworkins critique of positivists for having concentrated to excess on one type of legal standards, legal rules, makes a very palpable hit. Now available in paperback, and with a new foreword by the author, this popular book will continue to be of use to students and teachers of law, legal theory, and philosophy. The first step in effective legal reasoning is the ability to read a legal rule such as an article in a code and figure out how it works.
Since its first appearance in 1979, this work has established itself as a classic of legal philosophy. We will focus special attention on common law reasoning, but will consider other topics as well. Analogical reasoning in the common law grant lamond. Legal reasoning and legal theory by maccormick, neil. Legal reasoning and interpretation routledge encyclopedia. Care has been taken to make the legal elements of the book readily accessible to nonlawyers, and the philosophical. Abstractanalogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational. Interpretation and coherence in legal reasoning stanford. An individual user may print out a pdf of a single chapter of a monograph in oso for. A theory of legal reasoning and a logic to match1 jaap hage university of limburg, department of metajuridica, email. 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. Jurisprudence and legal theory stephen guest adam gearey james penner wayne morrison 2004 llb 2670005. Buy legal reasoning and legal theory clarendon law series new ed by neil maccormick isbn.
Natural law, legal positivism, the morality of law dworkins third theory of law legal realism and critical legal studies 1. In this section, we learn about these tools and practice using them creatively. Now, in making legal reasoning constitutive of the concept of law, the revised theory embraces a foundational element of nonpositivism, and that is the burden of my argument. Neil maccormick, legal reasoning and legal theory philpapers publications pages publications pages.
One of the most elaborate statements of natural law theory can be found in. Drawing principally on his knowledge of english and scots law maccormick. An institutional theory of law it seems that youre in usa. Legal reasoning and legal theory by neil maccormick nook. 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. Jan 01, 1978 legal reasoning and legal theory book. Legal reasoning and legal theory, by neil maccormick osgoode.
This paper offers a diachronic reconstruction of maccormicks theory of law and of legal argumentation. Thus, i will first present the main features of maccormicks revised theory of legal reasoning, clarifying its nature and scope and showing that this revised theory makes legal reasoning a constitutive element of the concept of law. The first point concerns maccormicks gradual break with legal positivism, and more specifically the thesis that the implicit pretension to justice of law proves legal positivism false in all its. Jul 11, 2017 this chapter explains in some detail how these insights are developed in maccormicks institutional theory of legal reasoning and legal justification. Forms of legal reasoning are the methods that lawyers use to apply laws to facts in order to answer legal questions.
May 12, 2011 this paper offers a diachronic reconstruction of maccormick s theory of law and legal argumentation. Principle and policy in private law reasoning volume 75 issue 2 james plunkett. Buy legal reasoning and legal theory, by neil maccormick, isbn 9780198763840, published by oxford university press from. Can legal decisions be justified by purely rational argument or are they. This study focuses on current jurisprudential debate between the positivist views of herbert hart and the rights thesis of ronald dworkin. The american legal realists brought special attention to the problems with deriving rules from opinions for an overview, see, e. The theory of legal reasoning provides full weight to the operation of principles and other standards in the legal process, and it shows that judges never have more than a limited discretion in hard or any other cases. Legal reasoning is to be understood as a form of practical reasoning concerning these very issues. These questions are central to the study of jurisprudence, and are critically examined in this book. Maccormicks theory of the justification of legal decisions. In particular, two related points will be highlighted in which the difference between the perspective upheld in legal reasoning and legal theory and the later writings is particularly marked.
In this book maccormick expresses a very clearcut position, presenting an almost exclusively methodological version of legal positivism that he substantially limits to some theses on the way in which the legal scholar should approach positive law. Abstract this paper offers a diachronic reconstruction of maccormicks theory of law and legal argumentation. It tackles with most common criticisms of dworkins argument. This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The principles interact with the rules, underpin them, hedge them in, qualify them, justify the enunciation of new rulings as tested out by consequentialist. Maccormick legal reasoning and legal theory pdf vincent luizzi. The first point concerns maccormick s gradual break. Other readers will always be interested in your opinion of the books youve read. Legal reasoning and legal theory ebook by neil maccormick.
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