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Rhetoric and The Rule of Law
A Theory of Legal Reasoning
Neil MacCormick
304 pages
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234x156mm
978-0-19-957124-6
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Paperback
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03 September 2009
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- Provides the author's long-awaited successor to his classic account of legal reasoning in Legal Reasoning and Legal Theory (OUP, 1978)
- Offers the author's views on two of the major issues in current legal philosophy - the nature and role of interpretation and the value of the rule of law
- Forms a central part in understanding the author's influential institutional theory of law, alongside Institutions of Law (OUP, 2007) and Practical Reason in Law and Morality (OUP, 2009)
When cases come before courts can we predict the outcome? Is legal reasoning rationally persuasive, working within a formal structure and using recognisable 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.Readership: Scholars and students of jurisprudence, legal theory and legal, social and political philosophy.
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Neil MacCormick, Formerly Regius Professor of Public Law and the Law of Nature and Nations, the University of Edinburgh 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.
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"Rhetoric and the Rule of Law is a fine work. It is stimulating: it makes the reader want to argue and test its tenets. It is too good to be read only by legal theorists." - Joe Thomson, Edinburgh Law Review, Vol 13, "Its erudite elegance means that it will serve as an excellent introduction to jurisprudence for undergraduates, as well as providing a major contribution to legal philosophy. MacCormick reaffirms the dialectic between the universal and the particular." - James Lee, University of Birmingham, Jurisprudence
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1: Prologue: Institutional Theory and the Lawmaker's Perspective
2: The Rule of Law and the Arguable Character of Law
3: On the Legal Syllogism
4: Defending Deductivism
5: Universals and Particulars
6: Judging by Consequences
7: Arguing about Interpretation
8: Using Precedents
9: Being Reasonable
10: Coherence, Principles, and Analogies
11: Legal Narratives
12: Arguing Defeasibly
13: Judging Mistakenly?
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The specification in this catalogue, including without limitation price, format, extent, number of illustrations, and month of publication, was as accurate as possible at the time the catalogue was compiled. Occasionally, due to the nature of some contractual restrictions, we are unable to ship a specific product to a particular territory. Jacket images are provisional and liable to change before publication.
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