ANTHONY UDOKA EZEBUIRO

e of author

LEGAL REASONING IN NEIL MACCORMICKS PHILOSOPHY OF LAW

LEGAL REASONING IN

NEIL MACCORMICKS PHILOSOPHY OF LAW

DEPARTMENT OF PHILOSOPHY

SOCIAL SCIENCES

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COMMANDER, EMMANUEL ONIGHOROBOH

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LEGAL REASONING IN NEIL MACCORMICKS PHILOSOPHY OF LAW

A DISSERTATION PRESENTED TO THE DEPARTMENT OF PHILOSOPHY, UNIVERSITY OF NIGERIA, NSUKKA IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF MASTER OF ARTS (M.A) DEGREE IN PHILOSOPHY

BY

ANTHONY UDOKA EZEBUIRO

REG. NO. PG/MA/09/51812

SUPERVISOR: REV FR DR FRANCIS O.C. NJOKU

APPROVAL PAGE
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This dissertation has been approved for the Department of Philosophy, University of Nigeria, Nsukka for the award of Master of Arts (M.A.) Degree in Philosophy.

By

------------------------------------------------REV. FR. DR. FRANCIS O.C. NJOKU SUPERVISOR

------------------------------INTERNAL EXAMINER

-----------------------------------------------REV. FR. DR. M. CHUKWUELOBE HEAD OF DEPARTMENT

-----------------------------------EXTERNAL EXAMINER

----------------------------------------PROF. C.O.T. UGWU DEAN FACULTY OF THE SOCIAL SCIENCES

CERTIFICATION
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EZEBUIRO, ANTHONY UDOKA, a Master of Arts student in the Department of Philosophy, Faculty of the Social Sciences, University of Nigeria, Nsukka, with Registration number PG/MA/09/51812, has satisfactorily completed the requirements (Coursework and Dissertation), for the award of Master of Arts Degree (MA) in Philosophy. This dissertation is original and has not been submitted in part or full for any other degree of this or any other University.

--------------------------------DR FRANCIS O.C. NJOKU (SUPERVISOR)

DEDICATION
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This work is dedicated, first and foremost, to Almighty God, my family and those of Mr. Chima Keke and V. N. Achobandu.

ACKNOWLEDGMENT

We are, at each moment, indebted to one another for the achievements and progress we record in life. This is the basis of this acknowledgement of an appreciation of helps and assistance received in the course of the production of this work. My first thanksgiving goes to the Almighty God who strengthened me with his gifts of life and love that remain unconditional. I also thank my parents, brothers and sisters who supported me with their payers and whatever they could grant me financially. I appreciate their sense of good will. I am very grateful to my Head of Department, Rev Fr Dr Francis O. C. Njoku, who is also my supervisor. I am equally indebted to the lecturers in the Department of Philosophy who provided me with their own quota through instructions and other interactions that became useful to the success of this work. I remember, in a special way, Rev Fr Dr Chrysanthus Ogbozo who started in the distant past to nurture my desire to embrace philosophy as a way of life, and cherished academic discipline. I appreciate the support I received from the families of Mr and Mrs Chima Keke and Mr and Mrs P. N. Achobandu. Their enviable words of advice and encouragement added to my strength. At this point, finally, I call to mind my own colleagues and friends in the Department of Philosophy. I recognize Kizito Uche Ogu, Celestine Dozie Anyaorah, Charles, Chiemeka and Stanley, who is also called Staggar. I know also that there are others whose names I cannot go on to mention here now. I am indebted in full measure to their interactions and fraternal criticisms.

EZEBUIRO, ANTHONY UDOKA MARCH, 2013

ABSTRACT

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This work is a study of Neil MacCormicks theory of legal reasoning. The work examines his position on the question of justification of legal argument as it operates in court. It notes his claim that legal reasoning is strictly deductive, although there are indeterminacies in law which limits deductive reasoning. MacCormick agrees with Hart that at the limitation of deductive reasoning, the judge adopts judicial discretion to modify the existing rules and fills in the gaps of indeterminacy of rules. In doing this, he is guided by what he refers to as Second-Order justification. Second-Order justification involves testing rival possible rulings against each other and rejecting those which do not satisfy relevant test; (i.e.) what makes sense in the world or in the context of the legal system. Second order justification remedies such problems that deductive reasoning is not able to solve such as those of relevancy, interpretation and classification of legal facts by making legal judgement observe the principles of consistency, coherence, and consequentialist. The principle of consistency ensures that there are no contradictions with other existing rules, coherency makes sure the decisions arrived at fit in well with the recognized principles of the legal system and consequentialist ensures that the same decisions arrived at do not yield absurd consequence. Through these novelties, MacCormick argues that legal reasoning is explanatory; for it explains what reasons judges use in justification of their decisions and normative; for it prescribes the reasons they (judges) ought to use.

TABLE OF CONTENTS
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Title Page--------------------------------------------------------------------------------------------------i Table of Contents----------------------------------------------------------------------------------------ii Approval Page--------------------------------------------------------------------------------------------iii Certification----------------------------------------------------------------------------------------------iv Dedication------------------------------------------------------------------------------------------------v Acknowledgement---------------------------------------------------------------------------------------vi Abstract---------------------------------------------------------------------------------------------------vii CHAPTER ONE

GENERAL INTRODUCTION-----------------------------------------------------------------------1 1. Background of the Study------------------------------------------------------------------------------1 2. Statement of the Problem-----------------------------------------------------------------------------1 3. Purpose of Study---------------------------------------------------------------------------------------2 4. Significance of the Study-----------------------------------------------------------------------------2 5. Thesis of the Study-------------------------------------------------------------------------------------2 6. Scope of the Study-------------------------------------------------------------------------------------3 7. Research Methodology--------------------------------------------------------------------------------4 8. Clarification of Terms---------------------------------------------------------------------------------4 Endnotes CHAPTER TWO LITERATURE REVIEW -----------------------------------------------------------------------------4 CHAPTER THREE AT THE BASIS OF LEGAL REASONING-----------------------------------------------------21 1. Legal Argumentation--------------------------------------------------------------------------------21 2. Function of Legal Argumentation-----------------------------------------------------------------23 3. Judicial Process---------------------------------------------------------------------------------------26 4. Legal Reasoning--------------------------------------------------------------------------------------27 4. Judicial Precedent (and Analogy) -----------------------------------------------------------------29 5. Judicial Discretion------------------------------------------------------------------------------------33 6. Statutory Interpretation------------------------------------------------------------------------------35
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CHAPTER FOUR MACCORMICKS THEORY OF LEGAL REASONING-----------------------------------42 1. Legal Reasoning--------------------------------------------------------------------------------------42 2. Deductive Reasoning---------------------------------------------------------------------------------44 3. Presuppositions of Deductive Reasoning----------------------------------------------------------52 4. Limits of Deductive Justification------------------------------------------------------------------55 5. Second Order Justification--------------------------------------------------------------------------61 6. Towards Interpretivism-----------------------------------------------------------------------------68 7. Interpretation and the Rule of Law---------------------------------------------------------------70 Endnotes

CHAPTER FIVE EVALUATION, SUMMARY AND CONCLUSION------------------------------------------80 BIBLIOGRAPHY Endnotes

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CHAPTER ONE

GENERAL INTRODUCTION

1.

Background of the Study Very often, people say lawyers and judges take bribe in court so as to tilt the scale of

justice to the favour of the highest bidder. The common man in Nigeria, for instance, may be reluctant to seek justice in court for fear that he may not succeed, since he may have to give bribe to a judge so as to influence his decision. While the poor man is actually entitled to his feeling, which may or may not be founded, it could be that he does not know or understand how judges decisions are arrived at or how the adjudicating process functions, or how evidences are evaluated to conspire to favour a decision in one direction rather than the other. Again, the judge, in the absence of much good evidence to prove a particular event, which may have truly happened, may dismiss a case as having no sufficient grounds to be pursued in court. This state of affairs may also give a shock to a layperson who really knows that the accused was truly responsible for the alleged offence. There is no doubt, therefore, that lawyers and judges have a particular method of arguing or reasoning, different in a number of ways from the sort employed by the ordinary people in their everyday lives. Hence, Harris says their professional preoccupation with statutes, regulations, precedents, court ways and (in some jurisdictions) constitutions leads them into thinking about problems in a peculiar way.1 To investigate into the logic of this pattern of thought, therefore, is the task of legal reasoning. Legal reasoning differs in a number of ways from the sort of reasoning employed by individuals in their everyday lives. It is concerned with examining the reasoning involved in interpreting constitutions, statutes, and regulations, in balancing fundamental principles and policies, in adopting and modifying legal rules, in applying those rules to cases, in evaluating evidence, and in making ultimate decisions. No single definition captures the enormous meaning of legal reasoning. Consequently, legal reasoning means many things to many people and legal theorists alike, each according to his own orientation or background. For many, legal reasoning, generally, means reasoning to establish the content of the law as it presently exists. For others, it is reasoning from the content of the law to the decision which a court should reach in a case, which comes before it. And, yet, for another, legal reasoning
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refers to reasoning about the decision, which a court should reach in a case when all things are considered. At the basis of legal reasoning is the fact that, in history, reason and emotion were being regarded as the two fundamental operative forces in human life, ordering human affairs and contributing in a very essential way to constituting what the human nature is; a nature that thinks and a nature that feels. Both were conceived as necessary for a full, rich and balanced life. Yet, not many were prepared to accept this view. Hence, to reconcile them has continued to pose an extremely difficult problem. Some theorists are not actually prepared to accept the idea that reason has a part to play in the ordering of human affairs. Such theorists claim that passion rather than reason features more prominently in the activities of man. Others still maintain that it is reason, instead, that prevails over passion, that the role of passion is very insignificant. It is on account of this difficulty, therefore, that the problem surrounding legal reasoning becomes one of determining the extent to which reason or passion features in the ordering of human affairs, whether in the making of law, or reaching of judgements and decisions in the law court. It is on this account, therefore, that this work is set out to investigate this problem. But it achieves this in the perspective of Donald Neil MacCormick, a contemporary Scottish legal philosopher and jurist. MacCormicks contention, briefly stated here, is that law embodies values characteristically expressed in statements of principles of a given legal system.2 This implies that law is not value-free. If humans did not value order in social life, they would not have laws at all. Therefore, for MacCormick, law embodies not merely a form of social order, but that form of order which is specifically valued by those who have control of the legislative, executives or adjudicative process in a municipal legal system. 3 2. Statement of the Problem There are doubts in some quarters that reason plays a role in the judgement of human affairs. On this account, in his book Legal Reasoning and Legal Theory, Neil MacCormick among others, defends the role of reason over passion. He does this through his defence on the logic of deductive syllogism as it is employed in legal reasoning and among legal positivists. However, he notes that he is aware that deduction does not apply in all cases of the law; hence he posits second-order justification. The problem this work sets out to resolve therefore is:

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a.

To what extent does MacCormicks theory advance an explanation of the nature of legal argumentation as manifested in the public process of litigation and adjudication upon disputed matters of law?

3.

Purpose of this Study Neil MacCormick has attempted constructing a theory of legal reasoning based on his

defence of deductive reasoning and proposition of second-order justification as a principles operative in legal reasoning. The purpose of this study thus is an attempt to clarify some of the misunderstandings of the ordinary people regarding the way lawyers and court reason and adjudicate over legal problems. It assess how the judge can make a distinction between good and bad, more sound and less sound, relevant and irrelevant, acceptable and unacceptable arguments in relation to philosophical, economic, and sociological issues and legal disputation in particular.

4.

The Significance of the Study Neil MacCormick is a legal philosopher of our contemporary times. This suggests

that, no matter the peculiarity of his philosophical preoccupations, there is still much significance of his philosophy to us today. The significance of this work therefore, is to see how we can restore public confidence in the judicial system through the knowledge of the theory of his legal reasoning. 5. The Thesis of the Study The thesis of this work is that there is legitimate argument in adjudication. There is also the hand in the direction of human affairs. Whether in the individual, state or in the adjudicative process of law, the role of reason is evident. Thus judgement of human actions and decisions derived therefrom by the court are built upon principles instead of some arbitrarily concatenated opinionated propositions or copulations. 6. Scope of the Study This work recognizes the enormity of MacCormicks thought and contribution to legal reasoning. Upon this ground, this works does not claim to be exhaustive of his whole idea on legal reasoning. Rather, its scope is limited within the area of our concern; hence the theory is open for further research.
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7. Research Methodology Our study is chiefly a library research. The data for this study were sourced from books, articles, journals and the internet. In handling these materials, the historical, expository and analytical methods were used. With the historical method, the subject of inquiry and the philosopher were located within historical perspective. In using the expository method, an attempt was made to understand the author, as the analytical method was used to subject his views to a closer scrutiny, highlighting the merits and demerits therein. 8. Clarification of Terms Some of the terms that will recur in this work need to be clarified. Such terms include i. Precedence: This is an official action or decision that has happened in the past and that is seen as an example or a rule to be followed in a similar situation later. ii. Statute: This is a law that is passed by a parliament, council, etc. and formally written down. It is also a formal rule of an organization or institution. iii. Stare Decisis: Literally, this is translated as to stand by decided matters. The phrase stare decisis is itself an abbreviation of the Latin phrase stare decisis et non quieta movere which translates as to stand by decisions and not to disturb settled matters. iv. Obiter Dictum: In this context, this stands for a statement by the way, and the probabilities such a statement has received less serious consideration than that devoted to a proposition of law put forward as a reason for the decision. v. Discretion: This is the freedom or power to decide what should be done in a particular situation.

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Endnotes 1. R. Cross, and J. W. Harris., Precedent in English Law, 4th edition. (Oxford: Clarendon Press, 1991), 193. 2. N. MacCormick., Legal Reasoning and Legal Theory. (Oxford: Clarendon Press, 1978), 12. 3. N. MacCormick, Legal Reasoning and Legal Theory, 14.

CHAPTER TWO

LITERATURE REVIEW

Both law and morality are normative disciplines, attempting to prescribe and control human behaviour in a certain direction. However, the controversy surrounding them, whether in the social, political or economic life of man, revolves around the extent to which they make use of reason and passion in their activities of structuring and restructuring of human situations. Not many are prepared to accept that passion rather than reason dominates human affairs. The ancient Greeks, for instance, had that the intelligible laws that govern the universe can only be grasped by the human mind. Socrates (470-399BC), as we know, believed that the principle of morality can only be discovered through the process of reasoning and insight. By this, Socrates was advocating for the superiority of the human rationality over emotion in the work which reason does in the social, economic and political growth of man in the society. In the Laws1, Plato (428-348) correlates politics and law with ethics. He claims that both man and state seek perfection and the highest perfection can only be achieved in the
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state through the clear-cut principle of rationality. By this principle of rationality, Plato speculates that personal virtues are the business of the individual as well as the state or social body. In this manner, Plato says that the laws in the state are enacted to bring about the best moral life in the individual as well as in the state. Here one recalls the reason why Plato repudiates the Sophists who paraded their teachings that there was no absolute morality to which the human mind could aspire. The Sophists were a group of itinerant thinkers active in the Greek world around the 5th century BC. Although they were not primarily philosophers, they led the way to the systematic account of ethics and law found in the philosophies of Plato and Aristotle. The Sophists emerged at a time when the central interests in the Greek world were focused on man and his place in the society. It was a period that democracy was evolving, with popular assemblies and courts of law. A society with this evolving democracy needed people educated in the democratic process. For the Athenians, then, it was first and foremost essential to master the art of rhetoric, which means saying things in a convincing manner and to succeed in this society, one needed the art of rhetoric to be able to convince people. Being critical of the traditional mythology, the Sophists travelled from city-state to city-state offering, for a fee, all manner of teachings, in mathematics, music, astronomy and language but, above all, in rhetoric. They repudiated the role of reason in human affairs. They taught that man cannot know the truth of the riddles of nature and of the universe. This is a philosophical position known as scepticism. From their travel experiences, they discovered that both conventions and local laws in the city-states could vary widely; hence they denied objective truth and the role of reason in human affairs. They denied absolute morality. They launched relativism and diversity in law and morals. They taught that there was no ultimate, objective justice per se since everything was a matter of convention. In the light of this, Protagoras, (c. 485-410B.C.), a leading Sophist, as cited by Samuel Stumph, claimed that man is the measure of all things, of what is, that it is, and what is not, it is not. 2 By contrast, Plato advocates that reason features in human affairs, whether as in the individual or state as a social body. This Platonic doctrine is evident in all of his works. In Timeaus3 and Critias4, for instance, Plato was preoccupied with what he thought to be the ideal state to which actual states must conform. Plato develops the idea of a perfect world of ideas of immutable essences, which the visible changing world imitates. 5 It is in this world,

according to Plato, that the true statesman must know the reign of justice and learn what life in the state ought to be; otherwise, he ruins himself and the state. 6 Plato says that our idea of justice approximates the absolute or eternal idea of justice in the World of Forms. This means
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that the eternal idea of justice can only be grasped or achieved in the ideal state when reason is allowed to operate in its best form. He writes that either the stock of those who rightly and genuinely follow philosophy (reason) acquires political authority, or else the class who have political control be led by some dispensation of providence to become real philosophers. 7 The practical application of this understanding, according to Plato, is to be seen in the Republic8 where Plato gave the doctrine of the tripartite nature of the soul, a doctrine which also recurs in Timeaus9. In the doctrine of the tripartite nature of the soul, Plato argues again for the superiority of reason over emotion and passion in human conduct. Here, the soul has three parts, namely: the rational, the courageous/spirited, and the appetitive parts. The rational part (the highest element) distinguishes humans from brutes. The other parts are perishable: the spirited part is nobler and in humans it is akin to moral courage, the appetitive part refers to bodily desires. But it is the very nature of reason to know and direct the spirit and appetites. Reason has a function, and reason is good only when it is acting as reason should.10 Clearly, ones reason is not fulfilling its function if it is pushed around by passion. Plato, in Phaedrus11, further makes a comparison in which the rational element is likened to a charioteer, and the spirited and appetitive elements to two horses. 12 For Plato, then, there is an order, harmony in the individual person or the state as a social body when there exists no interference of any part of the soul over the other. Each part of the soul must function according to its nature in order to maintain peace and harmony whether in the individual or in the state. But it is in the nature of reason to lead the other parts to their right direction. Using the same analogy, Plato says that disorder in the state is caused by the same circumstances that produce disorder in the individual, namely, the attempt on the part of the lower element to usurp the role of the higher faculties.12 In this regard, the uncontrolled drives of the appetites and spirited actions, whether in the individual or the state, lead to internal anarchy. Plato, therefore, advocates that the rational element must always be in control of other parts. In fact, it is the peculiar function of the rational part of the soul to seek the true goal of human life, and it does this by evaluating things according to their true nature. Although the passions or appetites might lead us into a world of fantasy and deceive us into believing that certain kinds of pleasures will bring us happiness, it is the unique role of reason to penetrate the world of fantasy, to discover the true world and thereby direct the passions to objects of love that are capable of producing true pleasure and happiness.14 For Plato then, this is the law of reason.
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Aristotle (384-322B.C), like Plato, does not favour passion over reason in the sociopolitical and economic conduct of persons or the state. Aristotle sees both reason and passion as featuring collectively in the organization of man and his society. However, Aristotle believes that reason has upper hand in this regard. In showing that happiness only consists through the human action, which coincides in accordance with reason, Aristotle states that in determining the good life, one must first look for the function of a human being. As an example of this, he states that for all things that have a function or activity, the good and the well is thought to reside in the function, so would it seem to be for man, if he has a function.15 being? In his response, Aristotle corroborates with Plato in proposing that reason or thought is a distinctively human activity and that it is a character or function of the soul whereby it sets humans apart and above other animals. Man acts rightly if the activity of his soul is in accordance with or implies a rational principle. 16 Aristotle sees reason as the ideal law of human conduct. A virtuous man is a man who is always guided by the rule of reason, which is the right rule. 17 Aristotle also arguably points out that the intellect is the divine within humans. He identifies the excellences most properly to humans with the intellectual excellences. He says that eudemonia or happiness is the purposive goal of human existence. He believes that human flourishing primarily consists in activity carried out in accordance with intellectual excellences. 18 For Aristotle, then, happiness is the chief good understood against the background of the function of humans. 19 and become good citizens.20 On their part, the Stoics (334-262 B.C) also believed in the role of reason over that of emotion in the ordering of human exercise. Against the teachings of the Epicureans, which were prevalent at their time, the Stoics taught that true happiness is located in wisdom to control what lay within the power of humans and to accept with dignified resignation what had to be.21 According to them, anybody who wants to be happy must follow nature, that is, must comply with the law of nature. And since they understand the law of nature as the law of reason, it follows, therefore, that to follow nature or to live according to nature means to live according to reason and not according to the passions, emotions or sentiments. 22 The wise man, they said, is one who is guided by reason and not by the passions. And to live according to right reason is to live according to the law of nature, which is the same as to obey the law of nature.23
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To this end, therefore, the question becomes what is the function of human

Here, again, Aristotle

concludes that intellectual pursuit constitutes happiness for humans and makes them flourish

The Stoics taught that human nature is made to have control over the passions/emotions of life in the face of the supreme threat to ones existence. They further saw throughout all of nature the operation of reason and law. The universe is a rational, intelligible, well-ordered organism ruled by the law of nature or divine providence. Human soul, they said, is rooted in reason and consequently human personality finds its unique expression in its rationality. For the Stoics, then, human rationality did not mean simply that people are able to think or to reason things, but rather that a persons nature participates in the rational structures and order of the whole of nature. Human rationality represents a persons awareness of the actual order of things and of his or her place in the order. It is the awareness that all things obey law. Thomas Aquinas lived between 1225 and 1274. He was deeply influenced by the teachings of Aristotle; hence like the philosopher, Aristotle24, Aquinas affirms the role of reason in human life and projects. Following Aristotles lead, Aquinas argues that happiness is connected closely with a persons end or purpose. T hus to achieve happiness one must fulfil ones purpose of existence. He argues that human action is the combined effect of the intellect and the will. The intellect is the seat of reason in man, and it constitutes the principle of human action. For Thomas Aquinas, law belongs to the realm of reason or intellect and it is the sheer act of will by a ruler 25. He admits that law is nothing but a dictate of practical reason emanating from the ruler who governs a perfect community. 26 Law, he says, is an ordinance of reason promulgated by one who has care for the community. Law is a product of practical reason, coming from the leader, that is, one who has concern for, or is in-charge of a perfect community, in which he exercises practical reasonableness of integral directiveness geared towards the common good of humans in all its constituent parts.27 The rule and measure of acts, according to Aquinas, is reason because it belongs to reason to direct a persons whole activity towards his or her end. Thus law, Aquinas says, consists of these rules and measures of human acts and therefore, law is based upon reason. The natural law is dictated and discoverable by reason. And the causal definition of law is founded on the first principle of human action, which is reason. Aquinas distinguished four kinds of law namely: the eternal law, natural law, human law and divine law.28 Eternal law is divine reason governing the whole universe. Natural law consists of the portion of the eternal law operative in nature. In fact, his reasoning is that all things partake somewhat of the eternal law...from its being imprinted on them29 and from this all derive their respective inclinations to their proper acts and ends.30 This is particularly of people, because their rational capacity has a share of the Eternal
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Reason, whereby it has a natural inclination to its proper end. 31 Human law is a derivative of the precepts of natural law. And divine law is that which operates in accordance to humanitys supernatural purpose or ends, thereby directing people to their proper end. Finally, Aquinas strictly taught that the unifying principle of these four kinds of law is rooted in the eternal law, which refers to the fact t hat the whole community of the universe is governed by Divine Reason.32 With Thomas Hobbes (1588-1679), in the seventeenth century, the direction of thought changed. Hobbes does not think that reason features at all in the affairs of men. In Chapter Six of the Leviathan33, Hobbes gives a description of the human nature. The basis of his argument is that men are fundamentally selfish and are ruled by emotions. Hobbes believes that the judgements of men on moral issues are based on their own feelings and volitions. Hence, for Hobbes, desires and aversions translate into love and hate. 34 It is Hobbess contention therefore, that right and wrong, good and bad are not in the nature of things but passions of the mind.35 At this point, one recalls that Hobbes was deeply

influenced by the Newtonian physics, whereby entities, including human beings, were subjected to the same principles of science. Thus in this Hobbesian direction, everything in nature was seen to be object in motion. Law is itself a positive entity. Quite unlike Hobbes, John Locke (1632-1704) does not extol passion over reason in human affairs. Rather, humans, he says, must abide by the law of nature which is both the law of God as well as the law of reason. That God has given a rule whereby men should govern themselves, I think there is nobody so brutish as to deny36 Locke says. It is with David Hume (1711-1776) that the most fundamental scepticism of reasons role to humans exercise was launched. Contrary to Locke, though as an empiricist, David Hume followed Hobbes before him in denying the hand of reason in human projects. The whole of Humes philosophical works portray him as one who wanted to build a science of man, whereby he could study human nature by using the methods of ph ysical science. Hume understood the central fact about ethics as that moral judgement is formed not by reason alone but by the sentiment of sympathy. But reason, he says, is not sufficient alone to produce any moral blame or approbation, for the movement from what is (a matter of fact) to what we are ought to do or required to do (qualities we place on objects-action) is a logical jump.37 According to Hume, what limits the role of reason in ethics is that reason

makes judgements concerning matters of fact and relations whereas moral judgements of good and evil are not limited to matters of fact or relation. Moral judgements are not reports of matters of facts. They are sentimental ascriptions that cannot be contradicted in descriptive
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terms. Thus in his work, An Inquiry Concerning the Principles of Morals,38 Hume argues that such judgements implying ought are not conclusions of reason. He claims that since there is no connection between events, there is no basis to warrant us to make a judgement that any two events stand to each other as cause and effect respectively. Hume speculates further that no set of descriptive statements entails prescriptive statements.39 Social facts exist separately. We cannot make a move from where societies are organised to say how they ought to be organised. Although reason helps us to discover primary qualities like figure, it bears no hand in a constant conjunction of passing from one impression to an idea.40 It is opposed to all the ideas that spring from an imagination.41 Reason can never advise us as to the following of the fancy of our imagination. 42 For one to move into action, passion or sentiment has to be in place, thus morals excite passions, and produce or prevent actions. Reason alone is utterly impotent in this particular sense. The rules of morality, therefore, are not conclusions of our reason. It is Humes belief that reason is not a species causes or motivates actions. It can never prevent volition, and is and only ought to be the slave of passions.43 Humes conclusion is that both law and morality are societal inventions, and they have their origin in human passion or motive. In Humes conceptual scheme, therefore, law and morality would be as separate as they are not necessary. Moral and legal judgement would then be a matter of presumption and guess. Immanuel Kant (1724-1803) does not deny the role of reason in the exercise of human affairs. In the Groundwork of Metaphysics of Morals44, Kant sought to arrive at principles of behaviours that are binding upon all humanity. He was sure that we cannot discover these principles simply by studying the actual behaviour of people, for although such a study would give us interesting anthropological information about how people do behave, but it would not tell us how they ought to behave. For Kant, the moral judgement that we ought to tell the truth is on principle the same as the scientific judgement that every change must have a cause. What makes them similar is that both of these

judgements come from our reason and not from the objects we experience. Thus Kant opines that the goodness of our actions does not depend on our sentiments but on its conformity to the universal law.45 Morality, for Kant, is, therefore, an aspect of rationality and has to do with our consciousness of rules or laws of behaviour, which we consider both universal and necessary. In the light of the positivist s approach to law, Jeremy Bentham (1748-1832) and John Austin proffer a separation-thesis in the way they argue that a value-free account of law could be given. One recalls their utilitarian principle of morality which stresses the greatest
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happiness of the greatest majority as the basis of moral justice. However, their imperative theories of law reduced law to a command of the sovereign. In this regard, law is an expression of the wishes of the law-giver. In their thinking, generally, as articulated by Francis .O.C. Njoku, Law originates from the sovereign, packaged as his wishes. The wishes of the sovereign manifest themselves as signs that say what the sovereign declares concerning conducts referring to certain persons or class of persons who are under his power, that is, his subjects. The sovereign expresses his will in various ways in the laws regarding aspects of conducts.46 This sole conviction of the utilitarianists, Bentham and Austin, on law and morality, should guide both legislators and ordinary citizens. And this is the fact that the human nature is ruled under the governance of two sovereign masters, pain and pleasure and it is for them alone to point out what ought to be done, as well as to determine what we shall do. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it.47 In the words of Bentham, the utilitarian morality is explained thus: By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or oppose that happiness. 48 Similarly, in the United States, Oliver Wendell Holmes, Jr. (1841-1935), in his writings, conceived of law as a body of rules and principles enforced by courts. 49 Holmes was a legal realist, and it is the contention of legal realism that what law is has to be ascertained from judicial decisions. In other words, realism concentrates on how law works in practice. Law is what obtains in courts and activities of the judges. For Holmes, therefore, we need only to investigate what the courts and lawyers and judges are doing, and not what they say they are doing, and then we will have correct notion what law is.50 In this form of pragmatic approach to jurisprudence, as pointed out by Carleton Kempallen,51 Holmes admits as illogical and thus fallacious any theory that claims to establish any logic in legal theorizing. Holmes viewed the logical form in which judges announced their conclusions as a veil covering their views of public policy. 52 For him, whether or not law emanates from the sovereign, as Bentham and Austin thought, or from the judges, it is to be conceived as a prediction. It is an error in thought to say that the way of law is the way of logic. To think that the development of the law is logic is part of the reasoning
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that believes that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents.53 Francis O.C. Njoku has articulated Holmes legal conviction in this manner: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theorists, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nations development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.54 The rules judges apply derive from experience. It is the fund of experience that helps a judge to represent the common sense of the community. Holmes criticizes this understanding translated into a certain belief that there are principles governing a phenomenon such as law, which gives basis for mathematically drawing general axioms of conduct. According to Holmes, this is the natural error of the schools. It is a bad logic to think naturally that the training of lawyer s is training in logic.55 Holmes says that the processes of analogy, discrimination, and deduction are those in which the lawyers claim they are most at home with. But he insists that he could not observe that language of judiciary which they claim to be language of logic. He rather contends that the so-called logical method and form flatter the longing for certainty and repose which is in every human mind. Holmes disallows acquaintance with repose or certainty as the destiny of man. Instead, he is resolute in thinking that judicial decision is not as a result of a logical process. He writes that behind logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.56 If it is not certainty that is sought in the judicial process, as Holmes has argued, what then is sought? Holmes response is that policy, economics and practical reasoning, rather than anything else, determine judicial decision, where the decision can no more than embody the preference of a given time and place. In like manner of the positivists response and legal framework, H.L.A. Hart builds his legal theory upon system of rules. In his work The Concept of Law58, Hart states that law is made up of rules. And there are a variety of rules.59 Law is used to checkmate conducts hence the judge applies rules in judicial process.
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However, Hart insists that judicial

judgments are not always a consequence of pre-determined rules, 60 even when they wrongly give that impression. Hart has a valuable and correct doctrine as to the reason why legal

rules do not by any means exhaustively ground the decision of every legal problem. It is the doctrine of the vagueness and open texture of legal rules, qualities of rules, which follow from the fact that rules are framed and stated in ordinary natural language by the use of general words and phrases like vehicle, traffic light, manufacturer, kill, intention and so forth. For such terms, there is a core of certainty, i.e. clear instances of things, people, acts and aims of actions which, beyond doubt, fall properly within the sense of the term in question. But there is also a penumbra of doubt, a range of fringe or borderline cases which are not unambiguously or clearly covered by the term used. In that sense, Hart argues that over and above the cases of open texture where general terms fail to have clean-cut edges, there are cases of vagueness where, for example, a common law rule or statute imports some general standard such as that of reasonableness or fairness. Judges decide cases within the context of operation of rules in which multiple considerations are taken on board before one adopts what is taken to be a good reason for a decision. There are many individual, social, political and moral interests that come into play in the formation of a judges decision. Judges do not generally, when legal rules fail to determine a unique result, intrude their personal preferences or blindly choose among alternatives; and when words like choice and discretion, phrases such as creative activity and interstitial legislation are used to describe decisions, these do not mean that courts do decide arbitrarily without elaborating reasons for their decisionsand still less that any legal system authorizes decisions of this kind. 57 What this means in Hartian legal framework is that since legal systems are systems of rules and since rules are framed or statable in general language, it follows that quite apart from other grounds of uncertainty in rules, there is a limit to the degree of determinacy in the guidance they can give. For all rules (except very badly drafted ones), there are some clear cases, and for some, there are many clear cases. If that were not so, the possibility of any legal system existing anywhere as any sort of guidance of anyones conduct for any purpose would be nil. Courts give the impression that their decisions are the necessary consequence of predetermined rules whose meaning is fixed and clear.60 But Harts remark is that

Conventional accounts of the reasoning involved in the application of legislative rules to particular cases have often pictured it as exclusively a matter of deductive inference. The courts decision is represented as the conclusion of a syllogism in
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which the major premise consists of the rule and the minor premise consists of the statement of the facts, which are agreed or established in the case. Similarly, conventional accounts of the use of precedents by courts speak of the courts extraction of a rule from past cases as inductive reasoning and the application of that rules to the case in hand as deductive reasoning. 61 Hart argues that in very simple cases this may be so but in the vast majority of those cases which trouble the courts, neither statutes nor precedents in which rules are allegedly contained allow of only one result. In most cases there is a choice. 62 He insists strongly thus: The judge has to choose between alternatives meanings to be given to the words of a statute or between rival interpretations of what a precedent amount to. It is only the tradition that judges find and do not make law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judges choice. Legal rules may have a central core of undisputed meaning, and in some cases it may be difficult to imagine a dispute as to the meaning of a rule breaking out. 63 What Hart is saying here is that the judges intuition fails them when they attempt to explain everything away under some general terms. All rules have a penumbra of uncertainty where the judge must choose between alternatives.64 For this reason, we cannot anticipate all cases. The so-called familiar cases do not offer us greater consolation. They vary in their individual specificities. This fact of possible variant views, even with familiar cases, leaves the judge with a choice of alternatives in his interpretation. Hence rules are framed in general terms which still need to be sorted out at the level of particular cases. By arguing for the in-eliminable need for judicial discretion in applying laws, Hart retains his conviction that legal concepts are irreducibly defeasible. There are uncertainties. General expressions, because of the indeterminacy of our language as a whole, do not always determine the novelties of particular cases in advance. There are, then, always some gaps along the line in the framing and application of rules that leave the judge with discretion. Harts claim is that there are clear cases where a concept can be applied and others where it cannot. Thus Hart maintains that in deciding such problem cases, judges do not simply find and apply law, they make it. But although judges are indeed duty-bound to apply the relevant legal rules in every case in which they are clearly applicable, they necessarily have a wider discretion what to do in the situations for which the rules are not clear. He writes:

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The discretion thus left to him (the judge) by language may be very wide; so that if he applies the rule, the conclusion, even though it may not be arbitrary or irrational, is in effect a choice. He chooses to add to a line of cases a new case because of resemblance which can reasonably be defended as both legally relevant and sufficiently close.65

Ronald Dworkin accuses the Hartian model as untenable and flawed in the face of legal reasoning. He argues that the Hartian stance misrepresents the process of adjudication. First, it leaves no room for the operation of principles within the judicial process. 66 Secondly, it wrongly characterizes the nature and extent of judicial discretion. By contrast, Dworkin argues that the basic feature of legal principles, as a subclass of political principles, generally, is that they identify rights of citizens as individual, and so are distinct from policies which identify collective goals. In hard cases, as truly as in clear cases, Dworkin contends, it is the rights of citizens which are being enforced. Neil MacCormick was born in May 27th 1941 and died on the 5th April 2009.67 He studied in Oxford University where he met Professor H.L.A. Hart. It was during this time that he developed an interest in legal philosophy.68 He got so many awards while studying in Oxford69 such as Queens Counsel honoris causa, Edinburghs Royal Gold Medal for Outstanding Achievement.70 Neil MacCormicks academic contribution, however, cannot be measured by the outstanding quality and sure legacy of scholarship. He wrote numerous journal articles and books, concentrating both on Law in a European context and the philosophy of law. 71 Works such as Legal Right and Social Democracy: Essays in Legal and Political Philosophy (1984), Legal Reasoning and Legal Theory (1978), Rhetoric and The Rule of Law (2005) and Institutions of Law (2007);
72

All convey his particular brand of legal philosophy. Legal

Reasoning and Legal Theory answers many of the Dworkinian critiques of the Hartian conception of law, and it is seen by some as showing a middle ground between the two.

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ENDNOTES 1. Plato, The Laws, Trans. Bury R. G., (London: Harvard University Press, 1961), Vol. 1-11, Bk. IV 259 2. S. E. Stumpf., Philosophy, History and Problems, 5ed. (New York: McGraw-Hill, Inc. 1 994), 32. 3. Plato, Timeaus, trans. Robin Waterfield, (Oxford: Oxford University Press, 2008), 69d6 70a7 4. Plato, Epistle Letter VII, 325d-369a2. Quoted from Francis O.C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 2ed. (Owerri: Claretian Institute of Philosophy, 2007), 250. 5. Plato, Epistle Letter VII, 326b1-4. Quoted from Francis O. C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 251. 6. Plato, The Laws, trans. R.G. Bury, (London: Harvard University Press, 1961), Vol. 1-11, Bk. IV 259. 7. Plato, Epistle Letter VII, 325d-369a2. Quoted from, Francis O.C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 251. 8. Plato, The Republic, Trans. Desmond Lee (Middlesex: Penguin Books, 1974), Bk. III, N 439a-443e.

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9. Plato, Timeaus, trans. Robin Waterfield, (Oxford: Oxford University Press, 2008), 69d670a7. 10. S. E. Stumpf., Philosophy, History $ Problems, 68. 11. Plato, Phaedrus, trans. David Gallop, (Oxford: Oxford University Press, 1975) 246a6ff. 12. S. E. Stumpf., Philosophy, History $Problems, 67. 13. Plato, Phaedrus, 246aff. 14. Aristotle, The Ethics of Aristotle: Nicomachean Ethics, Trans. J. A. K. Thomson (Middlesex: Penguin Books, 1976), Bk 1, 1097b22-1098a8. 15. Aristotle, Nicomachean Ethics, Bk. VI, 1144b. 16. Aristotle, Nicomachean Ethics, Bk. 1, 1100a34-b266. 17. Aristotle, Nicomachean Ethics, Bk. 1, 111c22-d23. 18. Aristotle, Nicomachean Ethics, Bk. 1, 1097a25. 19. Aristotle, Nicomachean Ethics, Bk. 1, 1096a27. 20. S. E. Stumpf., Philosophy, History and Problems, 114. 21. S. E. Stumpf., Philosophy, History and Problems, 118. 22. G. C. Field., Plato and his Contemporaries, A Study in Fourth-Century Life and Thought. (London: University Paperback edition, 1967), 150-151. 23. J. Barnes., Aristotle, (Oxford: Oxford University Press, 1982), 79 24. T. Aquinas., Summa Theologica, First Complete American Edition in three volumes. Literally trans. by Fathers of the English Dominican Province. (New York: Benziger Brothers, Inc. 1947) 1-11, q.90, a.2. 25. T. Aquinas., Summa Theologica, q. 91, a.1. 26. F.O.C. Njoku., Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of law, 62. 27. T. Aquinas., Summa Theologica, q. 90, a. 3, ad 2. 28. T. Aquinas., Summa Theologica, q. 93, a1. 29. T. Aquinas., Summa Theologica, q. 93, a1. 30. T. Aquinas., Summa Theologica, q.94 aa2-4. 31. T. Aquinas., Summa Theologica, q.91, a.2; q.94, aa2-4.
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32. T. Hobbes., Leviathan, ed. C.B. Macpherson, London: (Penguin Books, 1968), Pt. Ch., 4, par. 24, 119. 33. T. Hobbes., Leviathan, 120.

1,

34. J. Locke., Essay Concerning Human Understanding, (London: Fontana Books, 1964) Bk 4, Ch. 3, Sec. 18. 35. D. Hume., A Treatise of Human Nature 2d., P. H. Nidditch (Oxford: Oxford University Press, 1978), Bk., 111, Pt., 1, sec., 1, 469-470. 36. D. Hume., A Treatise of Human Nature, Bk.1, pt. 3, sec. vii, 97. 37. D. Hume., A Treatise of Human Nature, Bk. 1, pt. 3, sec. ix, 108. 38. D. Hume., A Treatise of Human Nature, Bk. 1, pt. 4, sec. vii, 208. 39. D. Hume., A Treatise of Human Nature, Bk. 3, pt. 1, sec. i, 45 40. D. Hume., A Treatise of Human Nature, Bk, 2, pt. 3, sec. iii, 413. 41. D. Hume., A Treatise of Human Nature, Bk, 2, pt. 3, sec. iii, 415. 42. I. Kant., Groundwork of the Metaphysics of Moral, trans. with an Introduction by H.J. Paton, (London: Hutchinson University Library, 1948), 66. 43. I. Kant., Groundwork of the Metaphysics of Moral, 66. 44. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy Law, of 135. 45. J. Bentham., On Utilitarianism and Government, with an Introduction by Ross Harrison, (Chatham, Wordsworth Editions Limited, 2001), 87. 46. J. Bentham., Principles of Morals and Legislation, (New York: Prometheus Books, 1988), Ch. 1, $ 2, 2. 47. J. Bentham., Principles of Morals and Legislation, Ch. 1 $ 2, 2. 48. C. Kempallen., Law in the Making, 7d. (Oxford: Oxford University Press, 1964) 41. 49. C. Kempallen., Law in the Making, 42. 50. C. Kempallen., Law in the Making, 43. 51. C. Kempallen., Law in the Making, 44. 52. C. Kempallen., Law in the Making, 45.

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53. O.W. Holmes., The Common Law (1881) in Pragmatism: A Reader ed., Louis Menand,137. Quoted from Francis O.C. Njoku, Studies in Jurisprudence, 143. 54. C. Kempallen., Law in the Making, 46. 55. C. Kempallen., Law in the Making, 48. 56. C. Kempallen., Law in the Making, 44. 57. H.L.A. Hart., Essays in Jurisprudence and Philosophy (Oxford, Oxford University Press, 1983), 106-107. 58. H.L.A. Hart., The Concept of Law, 26. 59. H.L.A. Hart., The Concept of Law, 123. 60. H.L.A. Hart., The Concept of Law, 12. 61. H.L.A. Hart., Essays in Jurisprudence and Philosophy, 99. 62. H.L.A. Hart., The Concept of Law, 12. 63. H.L.A. Hart., The Concept of Law, 12. 64. H.L.A. Hart., The Concept of Law, 124. 65. N. MacCormick., Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978), 233. 66. N. MacCormick., Legal Reasoning and Legal Theory, 5. 67. N. MacCormick., Legal Reasoning and Legal Theory, 5. 68. N. MacCormick., H.L.A. Hart, (London: Edward Arnold Publishers Ltd, 1981, 126-127. 69. D. Kristy., Law Professor Still Doing His Job Justice Retrieved online from www. htt://www.heraldscotland.com, on 01.04. 2011, 7. 70. P. Brain., and Prominent SNP Figure Dies Aged 67 .Online retrieved from www.http://news.bbc.co.uk/1/hi/scotland/edinburgh and east, on 01.04.2011. 71. P. Brian., Premiere Brings Stone of Destiny Home to Dying Son of King John Retrieved online from www.http://news.scotsman.com, on 01.04.2011, 6. 72. P. Brian., Premiere Brings Stone of Destiny Home to Dying S on of King John Retrieved online from www.http://news.scotsman.com, on 01.04.2011, 5. 73. P. Brain., Premiere Brings Stone of Destiny Home to Dying S on of King John Retrieved online from www.http://news.scotsman.com, on 01.04.2011, 1.

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CHAPTER THREE AT THE BASIS OF LEGAL REASONING MacCormick thinks there is a sense in saying that legal reason is logical. Although his primary interest in the study of legal reasoning is to establish the extent to which the determination of order in human affairs is a matter of reason, 1 he does not fail to throw light on the nature of legal argumentation as manifested in the public process of litigation and adjudication upon disputed matters of law.2 Through this way, MacCormick hopes to contribute to a better understanding of what is often called the judicial process. At this point, let us look at some of the elements of judicial process. 1. Legal Argumentation Stephen Toulmin writes that legal arguments are spoken presentations to a judge or appellate court by a lawyer, or parties when representing themselves of the legal reasons why they should prevail3 Legal argumentation is an exercise found in a judicial system. It is a widely held assumption that lawyers have a particular method of reasoning called legal reasoning. And people say it is logical. However, this assumption has not gone undisputed or unchallenged; hence, some scholars have argued against it. One here recalls Oliver Wendell Holmes, among others, who argues that there is no logic in the judicial process of decision making but it is all about experience. 4
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In any case, logic, as we know, is the study of methods and principles used to distinguish good (correct) reasoning from bad (incorrect) reasoning. 5 Richard Bodkin calls logic the science of proof6 whereby it enables us to know when an argument is a good one and when it is a bad one.7 Proving, according to MacCormick, depends on the adduction of evidence.8 Evidence is something which enables us to hold as true propositions about the present and to infer from these propositions about the past. Evidence is admissible if it is relevant to making an inference of or concerning a fact in issue in the case; and it is not excluded by some rule founded on the supposition that it is of a kind of evidence which, if admitted, would either be unreliable or unfair. 9 However, an inference is a process by which one proposition is arrived at and affirmed on the basis of one or more other propositions accepted as the starting point of the process.10 At this point; one observes that the logicians interest is to examine propositions to see whether an inference is correct. To say that an inference between a rule and a fact is correct means that the premise enunciated correctly warrant the attendant conclusions. At this point, it becomes important to note that MacCormicks concern on the natur e of legal argumentation, can be said to be rooted in the two legal systems with which he claims to be familiar: English law and Scots law, 11 although, he did not fail to refer to other systems such as the U.S.A. and the Roman law 12 when they became necessary. From within these systems, therefore, MacCormick observes that no matter how legal or judicial reasoning or style is shrouded in obscurity, whatever it is, such reasoning does not throw logic overboard. He further observes that in some cases, legal argumentation involves the practice of reporting to the decisions of the superior courts, otherwise called precedents. Precedent involves an earlier decision being followed in a later case because both cases are the same. Here, the use of precedents as a source of law in the British legal system is paramount. When such reports are invoked, they always contain some recital of the facts relevant to the matter at issue in the case reported. They could also contain some outline of the arguments of advocates in either side, and invariably a report of the opinion stated by the judge in justification of his decision as well as a statement of the specific decision given as between the parties to the litigation.13 These styles of judging usually vary according to particular legal systems employed. There is no doubt, MacCormick admits, that there will be noticeable difference of style among men and women of the bench. The fact remains that there is observable though

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varied styles, of what constitutes acceptable argument in the judicial process.14 there is some degree of

Again,

normative expectation held by the bench and bar as to what constitutes relevant and acceptable argument at law upon a given point, that facts already mentioned would lead one to infer that there are shared norms among judges and as between judges and counsel which determine what types of arguments do and ought to carry weight in contested matters of litigation. There is indeed within every legal system, and within the same one at different points, an observable common style of argumentation.15 In some particular systems, the normal rule is that all except the most insignificant cases are taken by collegiate courts having more than one professional judge, and there is a further rule normally observed that the court itself pronounces a single judgement, which, in no way, discloses any disagreement among the members of the court as to the appropriate decisions of the case.16 In another style, three or more judges are invoked whereby the three are allowed to state in a discursive pattern their own opinion on the points raised in the case so that the decision of the court may be based on simple majority decision among the judges, who may elaborate quite different, even opposed points of view in arguing for the decision which they favour. But even where a judge has discretion or choice to decide either side, he has to give reason for so doing and law can distinguish between good and bad reasoning or argumentation. What this means, according to MacCormick, is that Reasoning in the sense of public argumentation is itself an activity conducted within more or less vague or clear implicit or explicit, normative canons. We distinguish between good and bad, more sound and less sound, relevant and irrelevant, acceptable or unacceptable arguments in relation to philosophical, economic, sociological, or, above all, legal disputation over given foci of dispute.17 Legal argumentation, therefore, takes place within some given criteria of goodness or badness, more or less soundness, relevancy, acceptability, and so forth. There are rules of

logic which also function as criteria. That we ought to reject illogical arguments follows only if or because we recognize that there are good reasons for avoiding self-contradiction. It is in this regard that MacCormick sees any study on legal reasoning as an attempt to expiscate and explain the criteria as to what constitutes a good or bad, an acceptable or an unacceptable type of argument in the law.18 It is concerned with a kind of argument which the court will see good grounds to adopt, doubtless with modifications, as a strong or compelling reason for a decision in favour of that side.

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2. Function of Legal Argumentation Judges engage themselves in making determinations about human affairs. In this dimension, their activity takes place in a practical context. This is the reason why in this section, we are looking at what is supposed to be the function of legal reasoning. What does legal reasoning aim to achieve? The answer to this question, as we shall see, might be thought to vary depending on what sort of lawyer one is talking about or referring to. We know, for instance, that books on legal reasoning in common law jurisdictions concentrate on judges, whose published opinions contain masses of reasoning. In Civil law jurisdictions, we note that they focus more on the writings of jurists; both because their works, usually considered as La doctrine are regarded as important evidence of what the law is, and because courts judgements are much less elaborate in their ratiocinations. Again, those lawyers who advise clients, the solicitors and barristers think that the function of legal reasoning is prediction. This is because they give reasons for thinking that the other side is (or is not) likely to sue, defend or settle a claim, and reasons for thinking that a particular judge would (or would not) be likely to decide in your favour. This kind of reasoning is reminiscent of the American realists cla im that law is prediction. Also, there is the reasoning of the advocates. This group claim that legal reasoning or arguments in practical context are meant to persuade. Here, the group seeks to persuade the court to make awards, render verdicts or issue orders. This is the background upon which C. H. Perelman has argued that persuasion, rather than justification, is the overall function of legal reasoning. 19 T. D. Perry equally contends that, in the legal as in the moral context, persuading an audience to accept your view is what justification means.20 The overall view is that Argument in practical contexts are usually advance in order to persuade; they are aimed at a particular audience with a view to persuading that audience to do something; they are therefore in some measure relative both to audience and to topic ...Everyone knows that different styles and even tricks of arguing are suited to jury trials and to appeals before the House of Lords. But in each situation the advocate is out to persuade the tribunal to decide in favour of his own side of the case. 21

Persuasion, one remembers, goes back to the ancient Sophists. For as Njoku admits, The ancient philosophical origin of persuasion in political and practical contexts is well known. It dates back to the Sophists of ancient Greece who maintained that to function well in practical life one needed the art of rhetoric in order to win people to
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ones side; hence arguments in practical cont exts are advanced to persuade; one persuades an audience to do something.22 Rhetoric, according to Aristotle, means the art of persuasion. And persuasion is a sort of demonstration one exhibits when one is speaking.23 However, underneath the practical aim of persuasion, people are making claims in law or court. They want to justify their claim or demonstrate that they have a justification for the damage they are suing for. On the contrary, most writers, however, have assumed that the object of legal reasoning is justification in the more familiar sense of supporting the right answer. A lawyer gives his reasons for thinking that such and such a course of conduct or decision is legally justified, whatever its other merits. If a citizen brings an action against another for example claiming damages for some alleged injury by the other, it is a logical condition of the success of his claim that he be able to show it is a justified claim; if the other party denies liability he must in his turn demonstrate that the claim is not justified and accordingly his demand to be absolved from liability is a justified demand. 24 Justification must be at least the ostensible purpose of judges reasons. Whether there are elements of persuasion and predictions in the activities of the judges, they predominantly engage in giving reasons why something should be considered the correct, best, most justified legal solutions. Underlining the justificatory function of legal reasoning is the view that what justifies a decision as legally sound has some effect upon the decisions to sue, defend or settle. Therefore, we can insist that the primary function of legal reasoning is justification, upon which the functions of prediction and persuasion are parasitic. There is no doubt that sometimes, there exists aberration in the judicial system. A judge may be persuaded by a lawyer that a claim which he himself does not regard as a good one is justified in law. In that case, the lawyer is insincere. But a lawyer may, however, be insincere, for him to convince the judge to decide in his favour, he has to give his reasons, and his insincerity will be revealed in the reasons that he might give. As for the judge or court before whom the action is brought,

(He) must---so far as there is a dispute as to what actually happened---reach some findings on the evidence as to what did happen, and must in the light of that decide whether the claim is justified or the defence (in the sense given) is justified; the reasoning stated in the judicial opinion actually supports the decision to the extent that it shows why the order given---whether an order awarding damages as claimed, wholly or in part, or absolving the defender---is justified given the facts established and the relevant legal norms and other considerations.25
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There are cannons for assessing what constitutes good reason in law. Some reasons are not acceptable within the sustaining claims at law. Whether sincerity advanced or not, only those arguments which show why x ought to be done are reasons for demanding that it be done, or doing it. Those who work within such a system persuade precisely by convincing the relevant audience that there are reasons of overriding weight why x ought to be done; or at least, by showing that there are good ostensibly justifying reasons in addition to such other elements in the case as may appeal to unstated prejudices and predispositions. 26 Generally, therefore, the essential notion in the function of legal argumentation is that of giving good justifying reasons for claims, defences or decisions27 hence it is most rewarding to study the process of legal argumentation as a process of justification. 28 In other words, legal reasoning is not simply about persuasion. For since persuasion is oriented at a specific subject or group and admits of a wealth of methods that aim at influencing the opinions of that subject or group, legal reasoning is about providing an objective justification for action. 3. Judicial Process Understanding the general nature of judicial process, I suppose, will enable us to understand whatever we shall discuss as we go on in this project. Judicial process includes all the varied ways and methods in which courts, lawyers adjudicate over cases and other legal problems. It is associated with some problems relating to methods of adjudication. By adjudication, we understand that process which calls for open presentation of evidence and reasoned argument before impartial judges who are to make their decisions in accord with the evidences and arguments presented to them and in accord with the established standards29. It also means the legal process of resolving a dispute. 30 Courts exist in order to settle lawsuits, and this function imposes certain requirements on judicial procedures. Hence in the words of Frank Jerome, The judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalized impact on the behaviour of many besides the immediate parties to the dispute. Hence the judicial

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process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies. 31 It is not a less-obvious-fact that in our day to day experience, we observe that the work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent laymen ask him to explain, he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft. Such an excuse may cover with a semblance of respectability an otherwise ignominious retreat. Yet, it will hardly serve to still the pricks of curiosity and conscience. Judicial process, generally, involves all that the judges do when they decide cases in the law court. For centuries, much has been written in articles and books, trying to determine what the essence of the judicial or adjudicatory process is, and what distinguishes it from the other processes such as the legislative and administrative processes. However, as Benjamin Cardozo points out, judicial process is concerned, in varied proportions, with the following questions featuring in the activities of the judge in deciding cases in the court. In his words, judicial process is concerned with: What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of social welfare, by my own or the common standards of justice and morals?32 In the light of this, Edward H. Levi makes this observation that legal reasoning is also about how a lawyer, in everyday practice, answers a legal question and how that lawyer evaluates and formulates legal language...how a lawyer should deal with the authorities that he or she finds.33 Francis O. C. Njoku writes that legal reasoning is part of the judicial process that revolves around what judges and courts do in deciding or adjudicating cases. He further points out that the judicial process traditionally comprehends four major themes namely: legal reasoning, judicial discretion, precedent and statutory interpretation. 34 All these shall

be touched in this part of our discussion since an understanding of each and the role it plays

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in the judicial process will enhance our comprehension of what we intend to discuss in the next chapter and upon which the central focus of this essay dwells. 4. Legal Reasoning We shall not dwell much here since we have indicated the salient features of legal reasoning in the preceding chapters. In any case, we have to make some further remarks about legal reasoning. Legal reasoning differs in a number of ways from the sort of reasoning employed by individuals in their everyday lives. Some legal theorists think that legal reasoning is reasoning to establish the content of the law as it presently exists, or reasoning from that content to the decision which a court should reach in a case which comes before it. Others think that legal reasoning is reasoning about the decision which a court should reach in a case, when all things are considered. Precedent is a good example of legal reasoning. In individual reasoning we do not normally regard the fact that we have decided one way in the past as raising some assumptions that we should decide the same way in the future. Of course there can be special circumstances that have this effect but not in all cases. Someone may have relied on what we did before, or may have had their expectations raised that we would do so again but outside these special considerations, we do not regard ourselves as being committed in the future to make the same decision. It is always open to us to reconsider a decision and change our minds if we no longer think our judgement was correct. Aleksander Peczenik observes thus: Legal reasoning is a form of theory construction. A judge rendering a decision in a case is constructing a theory of that case. It follows, then, that a lawyers job (in an appellate argument) is to construct a theory of the case, too, and one that just happens to coincide with his clients interest. Since the opposing lawyer is also constructing a theory of the case, which coincides with her clients interest, the argument boils down to this: Which theory should the judge accept? There are several constraints here, but they are weak ones.35 In another sense, legal reason investigates the role of precedent in law. Law is not alone in attributing a special significance to precedent in legal reasoning. Many institutional and quasi-institutional practices place weight on what they have done previously in determining what they should do now. Individuals, by contrast, will often disregard what they did on an earlier occasion. If they do make reference to the past, this will normally be due to their belief that what they did in the past was the right thing to do, or at least is a good guide to what is the right thing to do now. Normally, the, individuals will merely be using their past decisions in the belief that they are a reliable short-cut to working out what is the right thing
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to do. If they harbour doubts as to the correctness of the earlier decision then they will reopen the matter and consider it afresh on the merits. In institutional settings, on the other hand, decision-makers will often refer to what has been decided in the past as constraining what should be done now, regardless of whether they think the original decision was correct. Equally, institutional decision-makers often regard earlier decisions as being relevant even when the decision at hand is different from the original ones, by citing them as analogies. They will argue that since an earlier decision was made on some matter, it would be inconsistent now to decide the present case differently. Individuals, by contrast, will often simply attend to the merits of the particular question before them and try to get the decision right. If it is pointed out that their current decision seems to be inconsistent with how they treated an earlier question, this may prompt them to reconsider, but it is not in itself a reason to change their decision. At the end of the day they may conclude that their earlier decision was a mistake, or they may even embrace the apparent inconsistency, believing that both the earlier and the latter decisions are correct even though they are not sure how they can be reconciled. Legal reasoning, in this direction then, gives a weight to what has been decided in the past that is usually absent from personal decision-making. We care about whether we made the right decisions in the past, but we seek to make the right decisions now, unconstrained by our earlier views. 5. Judicial Precedent (and Analogy) We pointed out in the preceding discussion that arguments from precedent are a prominent feature of legal reasoning. But here now, we want to know what exactly a precedent is? A precedent is the decision of a court (or ot her adjudicative body) that has a special legal significance. That significance lies in the courts decision being regarded as having practical, and not merely theoretical, authority over the content of the law. A decision has theoretical authority if the circumstances in which it was made (the identity of the decision-makers, those involved in arguing the case, the availability of evidence or time) provide good reasons for believing the decision to be correct in law. 36 If there are good reasons to believe that an earlier case was correctly decided, and if the facts in a later case are the same as those in the earlier case, then there are good reasons for believing that the same decision would be correct in the later case. In some legal systems, earlier decisions are, officially, treated in just this way. Cases are cited to courts, but courts may only justify their decisions by reference to other legal materials such as legislation. As a
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consequence, the decision in an earlier case is not in itself regarded as a justification for reaching a decision in a later case.37 By contrast, precedents have practical authority because they are regarded as partly constituting the law. By this is meant that the law is what the court stated it to be because the court stated it to be such. An important consequence of precedent having practical authority is the fact that since courts is bound to apply the law, and since earlier decisions have practical authority over the content of the law (i.e. over what is the law); it means then that later courts are bound to follow the decisions of the earlier cases. This is commonly known as the doctrine of precedent, or stare decisis (i.e., standing by things decided) However, Gall describes the doctrine of Stare decisis in the following terms: The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. Stare decisis literally as to stand by decided matters. The phrase stare decisis is itself an abbreviation o f the Latin phrase stare decisis et non quieta movere which translates as to stand by decisions and not to disturb settled matters.38 According to Rupert Cross and J.W. Harris, the rules of precedent are rooted in a fundamental rule of case-law in English law, whereby case-law consists of the rules and principles stated and acted upon by judges in giving decisions.39 A judge must have regard to the rule and principle enunciated in a previous case. Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judges reputation may affect the degree of persuasiveness of the authority.40 In his work, Learning the Law, Glanville Williams describes the doctrine in practical terms in reference to how Goodhart 41 conceived of it. He writes: What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never
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recur, but the legally material facts may recur and it is with these that the doctrine is concerned.42 What actually accounts for precedent in a case and how is it determined? The judge says many things in giving a judgement but he does not attach the same degree of importance to all he says in giving his decisions. Only his pronouncements on law are said to constitute a precedent hence the distinction between ratio decidendi and obiter dictum. In this sense, the ratio decidendi (reason of deciding) of a case can be defined as the material facts of the case plus the decision thereon while obiter dictum in this context stands for a statement by the way, and the probabilities are that such a statement has received less serious consideration than that devoted to a proposition of law put forward as a reason for the decision. 43 Glanville Williams further suggests a helpful formula to determine the ration decidendi of a case. He writes: Suppose in a certain case facts A, B, and C exist, and suppose that the court finds that facts A and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgement for the plaintiff, or judgement for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy. 44 It follows fro m Williams analysis that the addition of fact D to a future case means that conclusion X may or may not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future case from the precedent or conversely the precedent may be extended to apply to the future case. Precedents are distinguished from obiter dictum. As Vaughan CJ (1673) noted, an opinion given in court, if not necessary to the judgement given of record, but that it might have been as well given if no such, or contrary had been broachd, is no judicial opinion; but a mere gratis dictum.45 Thus Dictum is a judges opinion in the process of delivering his judgement; but is not a judicial opinion; hence he would not intend it to be taken as part of the ratio decidendi. There is considerable literature about whether the doctrine of stare decisis is a good or bad one but the doctrine is usually justified by argument which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated: It will not do to decide the same question one way between one set of litigants and the opposite way between another.If a group of cases involves the same point, the
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parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principle. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgement today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my right.Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts. 46 In this strength of argument, P. M. Perell corroboratively cited the conclusion of Middleton J. A. for the Ontario Court of Appeal in Sweney v. the Department of Highways. He writes: But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter, without any regard to previous decisions. 47 That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.48 Having said this so far, we might consider adding few words as to the justification of analogical reasoning in law. We rightly stated in the beginning of this section that reasoning by analogy is one among the two major characteristics of legal reasoning outside precedent. The English word analogy simply means comparison between two things that are similar in some way. In this sense, it is often used to help explain something or make it easier to understand. In logic, analogy, as a form of reasoning, connotes logical inference, whereby it supports reasoning that if two things are taken to be alike in one way, they are alike in other ways. An analogical argument in legal reasoning, therefore, is an argument that a case should be treated in a certain way because that is the way a similar case has been treated.49 Argument from analogy, therefore, complements argument from precedent in two ways namely: they are used when the facts of a case do not fall within the ratio of any precedent, in order to assimilate the result to that in the analogical case; and they are used when the facts
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of a case do fall within the ratio of a precedent, as a basis for distinguishing the case at hand from the precedent.50 The force of argument from analogy is different to that from precedent. An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. By contrast, arguments from analogy vary in their strengths. They do not bind, but only be considered along with other reasons in order to reach a result. That analogy is rejected in one case does not preclude raising the analogy in a different case. In the ordinary practical sense, analogy involves disputed situations where one is indistinguishable from the other and where the merits are relatively clear. In such situations, it leaves three main responses open: that the case is indeed indistinguishable since the same rationale applies to both, that the case is distinguishable and that the case is indistinguishable, but upon reflection the assessment of the original case was mistaken. There are a number of possible indirect benefits that accrue from the practice of analogical reasoning, such as expo sing judges to a wider variety of fact situations than the particular set before them, making them consider the views of other judges in previous cases and exerting s conservative pressure on individual decision-makers.51 Two questions arise about analogical reasoning. Firstly, by what process does a decision-maker identify the common characterisation between the case at hand and the analogous one? Secondly, what type of justificatory force does the common characterisation provide? These two questions have been clearly treated by Walker 52. According to him, On the first question, just as no two cases are identical in every respect, so also no two cases are such that some common characterisation of the facts cannot be found. But not every case is thought to provide an analogy, so what limits or directs the selection of analogies? The answer to this question flows into the issue of the justificatory force of analogies. What sort of reason does an analogy provide for deciding the instant case in the same way? It is widely agreed that the existence of an analogy depends ultimately upon the justification for the analogical decision. The facts in a case may fall outside the ratio of an existing precedent, and thus the court is not bound by the precedent. On the other hand, the justification for the earlier decision may apply to the later case, and thus provide an argument from analogy.53 6. Judicial Discretion Judicial discretion is the power of the judiciary to make some legal decisions according to their opinions. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Judicial discretion arises within the context of the problem of objectivity and subjectivity of legal reasoning in the court. It is also within the context where there are no clear rules or precedents to dictate the
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solution in controversial legal matters. In other words, it arises due to gaps experienced in law by the judges. In this regard, some people have maintained the subjectivity of legal judgements; that there are no right ways of deciding cases in such conflicting situations since people simply give their opinions regarding such issues. However, some legal philosophers, such as Fuller and Dworkin, are of the view that there exists some level of objectivity in law and morality.54 Fuller admits of what he calls the inner morality of law. It is within this context of the problem of judicial discretion that one appreciates the Right-Thesis theory of Ronald of Dworkin. One recalls that it is in this regard that Hart has insisted that human language is fraught with limitations. Rules, he says, are framed in general language; each particular case seems to present a novelty. Thus the legislator does not foresee every situation.55 Hart indicates therefore thus:

The judge has to choose between alternative meanings to be given to the words of the statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges find and do not make law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judges choice. Legal rules may have a central core of undisputed meaning, and in some cases it may be difficult to imagine a dispute as to the meaning of a rule breaking out .56 In the midst of uncertainty created by general rules, it becomes difficult to individuate the precise behaviour required by the rule in a particular case. The existence of gaps in law then leaves the judge with discretion. He writes: The discretion thus left to him (the judge) by language may be very wide; so that if he applies the rule, the conclusion, even though it may not be arbitrary or irrational, is in effect a choice. He chooses to add to a line of cases a new case because of resemblances, which can reasonably be defended as both legally relevant and sufficiently close.57 Dworkin attacks this Hartian idea. He says that (d) iscretion... does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. 58 Dworkin believes that there are no gaps in law, for it is only the theory that claims that law is simply made up of rules that runs into this problem. If a sergeant, for instance, is ordered to take his five most experienced men to patrol, Dworkin grants him discretion in a weak sense. Discretion in the strong sense, in Dworkins words, is when there are no standards set by the authority in question. In this sense, Dworkin says that a sergeant who has been told to pick any five men for patrol he chooses uses discretion. The authority in question did, however,

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set standards for the sergeant. The sergeant was to take five men on patrol, no more and no less. At this point, Dworkin insists that besides rules, law is made up of principles and policies. In the so-called hard cases, the judge will have to find what institutionally fits, interpreting his data coherently as to find the answer. In attempting to decide according to principles, he is deciding what the law is. Law is an interpretive activity, and interpretation does not mean that what is described is an appeal to extra-legal material. The adjudication aspires to some kind of legislative ideal, which Dworkin calls integrity. Thus a judge that accepts it thinks that the law it defines sets out genuine rights litigants have to a decision before him. Litigants are entitled in principle to have their acts and affairs judged in accordance with the best view of what the legal standards of the community required or permitted at the time they acted, and integrity demands that these standards be seen as coherent, as the state speaking with a single voice. 59. vi. Statutory Interpretation

A statute is a formal written enactment of a legislative authority that governs a state, city, or country. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations issued by government agencies. In any case, where precedence is guidance by example, statues are guidance by precepts.60 Statutes are sometimes referred to as legislation or "black letter law". As a source of law, statutes are considered primary authority. The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Statutory interpretation, therefore, is the process of interpreting and applying legislation.61 Some amount of interpretation is always necessary when case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations. But why do statues generate argument? Legislation may contain uncertainties for a variety of reasons.
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Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time. H.L.A. Hart has hinted that rules generate fresh looking in the face of application. The reason is because drafters are not very aware of the full range of factual situations where the rule will apply. Human language is necessarily ambiguous. There is relevant indeterminacy of aim. We are not quite sure what we want to do in certain circumstances; hence we may be in the state of relative ignorance of fact and indeterminacy of aim.62 Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups. Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by performing the construction, the court can make sweeping changes in the operation of the law. Ideally, all statutes are supposed to be in harmony with the fundamental law of the land i.e. must be constitutional. The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Three rules of statutory interpretation can be noted, namely: the literal, the golden and the mischief rules.63 In interpreting the rule, mischief rule suggests that four things have to be noted: the common law before the Act, mischief that the common law did not provide for, the remedy appointed for the mischief, and the reason for the remedy. 64 The literal interpretation insists on the plain meaning of the statue whic h urges, follow the rules enacted by the legislature, except following the rule will lead to an absurdity, that is, an absurd meaning should not be imputed to the legislature because it is not right, just, or fair (natural law). 65 The golden rule approach exists when the literal interpretation leads to a meaning which the Parliament or legislature could not possibly have intended. Then a second meaning is intended.

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END NOTES 1. N. MacCormick., Legal Reasoning and Legal Theory, (Oxford: Clarendon Press, 1978), 7. 2. S.Toulmin., Argumentation Theory. Retrieved online www.http://en.wikipedia.org/Wiki/, Argumentation Theory on 21.5.2011. 5. 3. N. MacCormick., Legal Reasoning and Legal Theory, 7. 4. O.W. Holmes., The Common Law (1881) in Pragmatism: A Reader ed., Louis Menard, 137. Quoted from Francis, O. C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of law, 2ed. (Owerri: Claretian Institute of Philosophy, 2007), 141. 5. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law .2d, (Owerri: Claretian Institute of Philosophy, 2007), 249 6. N. MacCormick, Legal Reason and Legal Theory, 53. 7. I.M. Copi and C. Cohen, Introduction to Logic 8d. (New York: Macmillan Publishing Company, 1990) 3. 8. R. Bodkin, Logic For All (Ireland: Mercier Press Ltd, 1963), 7. 9. R. Bodkin, Logic For All, 7. 10. N. MacCormick, Legal Reasoning and Legal Theory,88 11. N. MacCormick, Legal Reasoning and Legal Theory, 14. 12. N. MacCormick, Legal Reasoning and Legal Theory, 14. 13. N. MacCormick, Legal Reasoning and Legal Theory, 13. 14. N. MacCormick, Legal Reasoning and Legal Theory, 15. 15. N. MacCormick, Legal Reasoning and Legal Theory, 15. 16. N. MacCormick, Legal Reasoning and Legal Theory, 11. 17. N. MacCormick, Legal Reasoning and Legal Theory, 12. from

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18. P. Delvin., Judges and Law Makers Quoted in Harris, J. W., Legal Philosophies, (London: Butterworths, 1980), 193. 19. P. Delvin., Judges and Law Makers Quoted in Harris, J. W., Legal Philosophies, 193. 20. N. MacCormick., Legal Reasoning and Legal Theory, 12-13. 21. N. MacCormick, Legal Reasoning and Legal Theory, 14. 22. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 262 23. Aristotle, Nicomachean Ethics, Bk., 1, Ch., 3, 1358b1-15. Quoted from Francis O.C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 263. 24. N. MacCormick, Legal Reasoning and Legal Theory, 14 25. N. MacCormick, Legal Reasoning and Legal Theory, 16 26. N. MacCormick, Legal Reason and Legal Theory, 15. 27. N. McCormick, Legal Reasoning and Legal Theory, 17. 28. N. MacCormick, Legal Reasoning and Legal Theory, 19. 29. R. Gaussen., Adjudication Online retrieved www.http://en.wikipedia.org/wiki/adjudication, 6. on 07.5.2011 from

30. J. Bouvier., Adjudication Retrieved online on 13.4.2011 from www.http://legaldictionary.thefreedictionary.com. 1. 31. R. Jerome, The Nature of Judicial Process Online retrieved from http://enwikipedia.org/wiki/The_Nature_of_the_Judicial_Process on 13.4. 2011, 5.

32. B. Cardozo, B., The Nature of Judicial Process Online retrieved from www.http://xroads.virgia.eduRDOZO/CarlNat.html.13/04/2011. 3 33. E.H., Levi, An Introduction to Legal Reasoning, (Chicago: The Chicago University Press, 1949), 65. 34. F.O.C. Njoku., Studies in Jurisprudence, A Fundamental Approach to the Philosophy of Law, 249 35. A. Peczenik., Developing Legal Argumentation Retrieved www.http://profjus/25sp/law34/weighing.htm. on 12.03.2011.1 online from

36. L. Grant., Precedent and Analogy in Legal Reasoning Retrieved online from www.http://Plato.standford.edu./entries/legal-reas-prec/on 16.04.2011, 1.

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37. L. Grant., Precedent and Analogy in Legal Reasoning Retrieved online from www.http://Plato.standford.edu./entries/legal-reas-prec/on 16.04.2011, 3. 38. L. Grant., Precedent and Analogy in Legal Reasoning Retrieved online from www.http://Plato.standford.edu./entries/legal-reas-prec/on 16.04.2011, 2. 39. P.M. Perell., Stare Decisis And Techniques of Legal Reasoning And Legal Argument, Online retrieved from www.http://legalresearch.org,/wiki/Stare_decisis on 21.3.2011, 1 40. R. Cross and J.W. Harris, J. W., Precedent in English Law 4d. (Oxford: Clarendon Press, 1991), 3. 41. L. Grant., Precedent and Analogy in Legal Reasoning, Retrieved online from www.http://Plato.Standford.edu,/entries/legal-reas prec/notes.html. on 26/3/2011, 4. 42. A. L. Goodhart., Determining the Ratio Decidendi of a Case in Essays in Jurisprudence and the Common Law, 40:161-83. 43. G. Williams., Learning the Law, 9ed. (Toronto: Carswell, 1983), 102-118. 44. R. Cross, R., and J.W. Harris., Precedent in English Law, 4ed. 41. 45. G. Williams., Learning the Law, 9ed. 106. 46. Bole v Horton 360 at 382. Quoted from R. Cross and J.W. Harris., Precedent in English Law 41. 47. B. Cardozo., Supra, note 4 at 33-34. Quoted from Perell, M. P., Stare Decisis And Techniques of Legal Reasoning And Legal Argument, 2. 48. V. Sweney., The Department of Highways. Quoted from M.P. Perell., Stare Decisis and Techniques of Legal reasoning and Legal Argument, 2-3. 49. W.K. Frankena., Ethics, 2nd ed. (Englewood Cliffs: N.J Prentice-Hall Inc., 1973) 49. 50. L. Grant., Precedent and Analogy in Legal Reasoning, Retrieved online from www.http://Plato.Standford.edu./entries/legal-reas-prec/ 15. 51. L. Grant., Precedent and Analogy in Legal Reasoning Retrieved online from www.http://lycos.com/.../argumentation...argumentationtheory.html 15. 52. H.J.M. Boukema., Judging (Zwolle: W.E.J. Tjeenk Willink, 1980), 234. 53. L., Grant., Precedent and Analogy in Legal Reasoning Online retrieved from www.dougwalton.ca/papers%20in%pdf/09Argshort.pdf. 15-16. 54. F.O.C. Njoku, F.O.C., Studies in Jurisprudence Fundamental Approach to the Philosophy of Law, 269. 55. H.L.A. Hart., The Concept of Law, 125.

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56. H.L.A. Hart., The Concept of Hart, 124. 57. H.L.A. Hart., The Concept of Hart, 124. 58. R. Dworkin, R., Taking Rights Seriously, (Duckworth: Gerald Duckworth Co. Ltd.1977), 22-28. 59. R. Dworkin, R., Laws Empire (London: Harvard University Press, 1986), 90-91. 60. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 2ed. 289. 61. O.C. Jensen., Statutory Interpretation Online retrieved www.http//en.wikipedia.or/wiki/Statutory interpretation on 04:05:2011. 62. H.L.A. Hart., The Concept of Law, 123. 63. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 2ed. 290. 64. F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 2ed. 290. 65. W.N. Eskridge., Interpreting Statutes in Patterson, D., (ed.) A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell Publishing Limited, 1996), 200. Quoted from F.O.C. Njoku., Studies in Jurisprudence A Fundamental Approach to the Philosophy of Law, 2ed; 2 from

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CHAPTER FOUR MACCORMICKS THEORY OF LEGAL REASONING 1. Legal Reasoning The starting point of MacCormicks theory of legal reasoning is the identification of its function, to which he admits is the function of justifying an action. His aim in legal reasoning was to explain the nature of legal argumentation as it manifests itself in court decisions. He focused on the legal systems of the United Kingdom, specifically the English and Scots law, although he suggested that the claims he made about United Kingdom law deserve to be tested with respect to other legal systems, at least insofar as they are grounded in more general philosophical premises.1 In his work, Legal Reasoning and Legal Theory, MacCormick sets out to provide a theory of legal reasoning, which is both explanatory and normative. It is explanatory in the sense that it both explains what reasons judges use in justification of their decisions, (especially English and Scottish judges), and it is normative in the sense that, as he contends, these are the reasons they (judges) ought to use. Firmly located within a legal positivistic stance at the beginning, at least, MacCormicks theory of legal reasoning is generally a defence of the role of deductive reason in the application of law, namely, a defence of the possibility that legal arguments and the application of law can be rationally structured and rationally reconstructed; hence be subjected to some forms of rational assessments. MacCormick, therefore, states that legal

reasoning involves all that the judge and court do in order to justify the decision which they take in law court. He writes: Since judges are required to give only such decisions as are justified according to law, they must apply thought to the question which of the decisions sought from them by the parties to a case in Court is so justified. Since they are required to state the reasons for their decisions, they must not merely reason out, they must publicly state

and expound, the justifying reasons for their decisionshence their eminent accessibility to study.2 MacCormick insists that legal reasoning or what the judge or the court does is not an action undertaken under any arbitrary situation. He is of the view that it is an action which has its own principle and logic. Thus he contends that since legal reasoning is a form of thought it must be logical, i.e. must conform to the laws of logic, on the pain of being irrational and self-contradictory. That is, law must be logical in the technical sense. 3

What does it mean to say that law or an argument is logical in the technical sense? MacCormick answers that an argument is said to be logical if it complies with the requirements of logic, and that is to say, if its conclusion follows necessarily from the premises. On the contrary, an argument would be considered illogical or logically fallacious if it purports to derive from given premises a conclusion which is not entailed by them, or which is contradictory of the conclusion which actually follows from them. 4 At this point, MacCormick reaffirms that the specific task of logic as a branch of knowledge is to study the forms of valid argument.5 In addition, MacCormick reasons that with the sole exception of premises which are internally self-contradictory, the premisses of an argument cannot themselves be said to be either logical or illogical. Being logical in the technical sense, he maintains, is a characteristics only of arguments; it is applicable to propositions only in the sense that selfcontradictory propositions (e.g. p and not p) are logically false.6 Therefore, for MacCormick, these are the senses in which one can say that a law or an argument is illogical. Again, MacCormick sets out to discover the logic of legal reasoning. He has earlier stated at the beginning of his work that his attempt is to demonstrate the nature and character of this logic inherent in legal reasoning. Hence, he moves further to emphasize that legal reasoning is essentially deductive. It is about applying rules to facts. Legal reasoning is about Rule plus facts yields conclusion. And symbolically, MacCormick points out that legal reasoning, in its deductive character, could be expressed in this form: A. In any case, if p then q B. In the instant case p C. .:, in the instant case, q7
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The above specifies, according to MacCormick The self-contradictory character of denying (the conclusion) (C) while asserting the major premisses (A) and the minor premises (B) is not dependent on either (A) or (B) being actually true. Even if either or both of (A) and (B) were actually false, somebody who asserted them (mistakenly, in that case) as true, would be unable without self-contradiction to deny (C). That (A) and (B) taken together imply (C), is necessarily true, and is true whether or not either or both of (A) and (B) is actually true.8 According to MacCormick, this is the essential truth of legal reasoning. Thus, to justify a decision in this sense would be to apply a pertinent rule to the facts of the case. That is why MacCormick admits that a study of legal reasoning is therefore an attempt to expiscate and explains the criteria as to what constitutes a good or a bad, an acceptable or an unacceptable type of argument in the law. 9 We recall, at this point, that MacCormick had earlier stated that the specific task of logic as a branch of knowledge is to study the forms of valid argument. Here again, he reaffirms this position or what he has formally stated saying: In the present context, however, we are concerned not with the demonstration of logical truths but with their application, that is, with the application of logically valid forms of argument in the legal contexts. It is important therefore, to emphasize that the logical validity of an argument does not guarantee the truth of its conclusion; that the argument is valid entails that if the premises are true, the conclusion must be; but logic itself cannot establish or guarantee the truth of the premises. 10 Here, what MacCormick is saying is that the truth of a conclusion in a syllogistic deduction does not rest on the truth-fact of the major premisses or on the minor premisses. The conclusion must instead be necessarily true whether or not either or both the major or minor premises are actually true. A process of this nature, MacCormick opines, expresses the formal validity of an argument. And any argument of this form, he thinks, would equally be valid no matter the substance of the premisses. 2. Deductive Reasoning We earlier noted that the starting point of MacCormicks theory o f legal reasoning is the identification of its function, to which he says is the function of justifying an action. Now, there are many argumentative strategies that might work as justifications. The most
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elementary justificatory argumentative form to which MacCormick was interested to demonstrate is the deductive reasoning. By the time in which MacCormick was writing Legal Reasoning and Legal Theory, the use of deductive arguments by lawyers had been subjected to decades of fierce critique. So MacCormicks first worry in the book is to defend demonstratively its use as both a good description of what judges do in many (if not most) cases and as a necessary (though not sufficient) feature of legal justification. This is the rationale behind his writing that It is sometimes possible to show conclusively that a given decision is legally justified by means of a purely deductive argument.11 MacCormick, by this, one must observe, repudiates all who have denied that legal reasoning is strictly deductive.12 However, he admits that his task in Legal Reasoning and Legal Theory is to demonstrate that it is sometimes possible for some legal decisions to be justified by deductive arguments. 13 says, is an argument which purports to show that one proposition, the conclusion of the argument, is implied by some other proposition or propositions, the premisses of the argument. A deductive argument is valid if, whatever may be the content of the premisses and the conclusion, its form is such that its premisses do in fact imply (or entail) the conclusion.14 In MacCormicks conceptual legal scheme, law is a system of institutive rules. 15 The judges duty, by this understanding of law, is to apply rules to facts where and when they are relevant and necessary in a way that necessitates a pre-determined outcome. This view of legal reasoning as a purely deductive process holds good for clear cases where the subsumption of facts under the relevant rules is a relatively straightforward business. The steps used to resolve such cases can be represented by the simple formula R (Rule) + F (Fact) =O (Outcome). There are claims that not everyone would accept this method of judicial adjudication. Some views would seriously argue that this is not the whole story of legal reasoning. MacCormick was deeply aware of this. In hard cases, for instance, where rules are indeterminate, and do not provide a clear result, judges may need to refer to sources and considerations beyond the framework of the rules in order to reach legal decisions. But what exactly are the mechanics of this process? MacCormick provides an extremely useful framework for understanding adjudication in hard cases.16 He suggests that judges craft their rulings through consideration of three A deductive argument, he

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factors namely consistency, coherence, and consequences. So , for hard cases, the process of adjudication becomes R (Rule) + F (fact) + C1 (Consistency) + C2 (Coherence) + C3 (Consequences) = O (outcome). Judges both look inwards to prior decisions within the system to ensure that the conclusion they reach can be justified as a good fit (consistency and coherence), and they also look outside legal rules to consider the broader social implications that would flow from their decisions (consequences). In theory, at least, this framework allows the law to develop in a way that is both internally coherent and also attuned to the social, economic and political factors that are external to the law itself. Having said this, MacCormick went further to demonstrate practically at length how purely deductive reasoning is possible in justification of a judicial decision in law court. In making this theory to have a concrete base, MacCormick demonstrates deductive justification in law, using as an example the decision of Lewis J in Daniels and Daniels v R. White and sons and Tarbard.17 Here, a publican (Mrs Tarbard), who sold to Mr Daniels a bottle of R. Whites lemonade which turned out to contain carbolic acid, was held liable as a seller by description of goods which were not of merchantable quality, within the terms of section 14(2) of the Sale of Goods Act 1893 (as authoritatively interpreted in prior cases). 18 It is relevant to point out here that for a clearer understanding of this practical deductive demonstration of this, there is greater need for us to restate the different stages or steps of this case, as it was covered by Lord Lewis J. before he arrived at his conclusion or decision. We do this to show that the entire argument of Lewis J. in the Daniels case so far as it related to the action between Mr. D., the plaintiff, and Mrs. T. the publican can be restated in the most ruthlessly deductive form; and that each step of the argument, and the argument as a whole, are logically valid. But we must also note that in this particular case, all the major premisses involved in the argument, not all of which were expressly stated, are rules of law for which contemporary authority can be cited. Also it should be known to us that the minor premisses on the other hand, are either statements of proven primary fact or conclusions of secondary fact derived from the former by deduction via some major premise w hich is a rule of law. This re-examination of Lewis J.s opinion will reveal to us that there are three assertions of primary fact on which the whole edifice is ostensibly built. First of all, let us state the edifice. Mr. D. Came into the public house...and said I want a bottle of R. Whites lemonade and R. Whites lemonade was what (Mrs. T. gave him. The bottle in fact contains(ed) carbolic acid. (Mrs. T. Is) a seller who deals in goods of that description (viz. Bottles of lemonade).19
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In his bid to analyse Lewis Js process of decision, MacCormick added the fourth premise which stands as the number four: Mrs. T. transferred the property in the bottle of lemonade to Mr. D. for a money consideration. Having built up this ground, MacCormick, in the following process analytically examines the sense for his judgement. If one person transfers the property in goods to another person for a money consideration, then a contract of sale of those goods exists as between those parties, called the seller and the buyer respectively. In the instant case, one person (Mrs. T) transferred the property in goods (a bottle of lemonade) to another person (Mr. D.) for a money consideration. Therefore, in the instant case a contract of sale of those goods (a bottle of lemonade) existed as between those parties, (Mrs. T) the seller and (Mr. D) the buyer. If a contract of sale of certain goods exists as between a seller and a buyer, if the goods in question are a form of bottled drink, and if the buyer in purchasing the bottled drinks asks for a bottle of a certain named beverage, then the goods in question are bought and sold by description6. In the instant case a contract of sale of certain goods (a bottle of

lemonade) existed between a seller and a buyer (Mrs. T. And Mr. D). The goods in question were a form of bottled drink (viz. A bottle of lemonade). The buyer in purchasing the bottled drink asked for a bottled of a certain named beverage (Mr. D...said I want a R. Whites lemonade). (See fact bottle of (i)above.) Therefore, in the instant case, the goods in

question (a bottle of lemonade) were bought and sold by description. If goods are bought and sold by description, and if the seller of the goods is a person who deals in goods of that description, then there is an implied condition (which must be fulfilled by the seller) that the goods shall be of merchantable quality. In the instant case, goods (a bottle of lemonade) were bought and sold by description. The seller of the goods (Mrs. T.) was a person who dealt in goods of that description (viz. Bottles of lemonade). Therefore, in the instant case, there was an implied condition (which must be fulfilled by the seller) that the goods should be of merchantable quality. If goods sold by one person to another have defects unfitting them for their proper use but not apparent on ordinary examination, then the goods sold are not of merchantable quality. In the instant case, goods sold by one person to another (a bottle of lemonade) had defects (contamination with carbolic acid) unfitting them for their only proper use (human consumption) but not apparent on ordinary examination. Therefore, in the instant case, the goods sold were not of merchantable quality. If a contract of sale of goods exists between two parties, and if there is an implied condition (which must be fulfilled by the seller) that the goods shall be of merchantable
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quality, and if the goods sold are not of merchantable quality, then the seller has broken a condition of the contract which he was required to fulfil. In the instant case, a contract of sale of goods existed between two parties (Mrs. T and Mr. D.). There was an implied condition (which must be fulfilled by the seller) that the goods should be of merchantable quality. The goods sold were not of merchantable quality. In the instant case, the seller has broken a condition of the contract which she was required to fulfil. If a seller has broken a condition of a contract which he was required to fulfil, the buyer is entitled to recover damages from him equivalent to the loss directly and naturally resulting to him from the sellers breach of the condition. In the instant case, the seller has broken a condition of the contract which she was required to fulfil. In the instant case, the buyer is entitled to recover damages from her equivalent to the loss directly and naturally resulting from the sellers breach of the condition.20 Following from this analysis, one notices that in this particular case, the major premise is an indisputable rule of the legal system, while the minor premise consists of proven facts, and then the conclusion remains the holding, and that is to say that the decision is therefore justified purely by deduction plus the normative assumptions which warrant acceptance of the systems rule of recognition. 21 In this context, MacCormick reaffirms that deductive reasoning, as applied in law, takes the form of: A. B. C. In any case, if p then q In the instant case p .; in the instant case, q.22

When this form of reasoning is applied in the case of Daniels and Daniels v R. White and Sons and Tarbard, as we saw above, we arrive at this form of structural syllogism: In any case, if goods sold by one person to another have defects unfitting them for their only proper use but not apparent on ordinary examination, then the goods sold are not of merchantable quality. In the instant case, goods sold by one person to another had defects unfitting them for their proper use but not apparent on ordinary examination. Therefore, in the instant case, the goods sold are not of merchantable quality.23 MacCormick believes that legal syllogism, that is, the deductive model of justification, operates within the framework of rules whose validity has been established according to the criteria set forth in a (Hartian like) rule of recognition.24 He writes:

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It is the case that deductive reasoning from established legal rules and premises of fact takes place in law; and certainly the case that such arguments are treated as giving conclusive reasons for decisions. But we can see that what gives these reasons conclusiveness as justifications is the tacit presupposition of the obligatory character of respect for criteria of recognition, which in turn rests upon considerations of the kind...considerations which only have to be articulated in problem cases. Deductive justifications do not expound but they take place within a framework of value which supplies the ground for treating them as conclusive. 25 MacCormick took deductive reasoning in the form of practical syllogism to be of central importance in legal reasoning. In deductive reasoning, as conceived by MacCormick, it would be self-contradictory for anyone to assert the premisses and at the same time to deny the conclusion. Giorgio Pino, one of the greatest commentators on Neil MacCormick, has this to say: In a deductivist framework, a legal norm (a rule) plays the role of a major premise, a statement of fact is the minor premise, and these yield as a (deductively necessary) conclusion an individualised normative statement applying the general norm mentioned in the major premise to the facts mentioned in the minor premise.26 At this point, it becomes clear that MacCormick supplements the Hartian model at least with two important addenda. And this is to be found in the discussion on the internal aspect of norms, in the Appendix to Legal Reasoning and Legal Theory.27 He writes: What must be essential to the internal aspect of the rule of recognition is some conscious commitment to pursuing the political values which are perceived as underpinning it, and to sustaining in concrete form the political principles deemed inherent in the constituted order of the society in question. Whether or not that is correct in itself, it is not inconsistent with Harts thesis, though it involves taking it further than anything said by Hart himself would authorize.28 In order for the deductivist model to work, it is necessary that both the relevant legal rule and the facts of the case are undisputed, or at least that problems of interpretation and validity (affecting the normative premise), and problems of proof (affecting the factual premise) have already been settled. MacCormick is indeed confident that in many, if not in most cases, such problems are negligible. However, he assumes that in many cases also, there is clear rule to be immediately used as a normative premise of the normative syllogism, so that the normative syllogism represents, in such cases, all the justification that is required in order to apply the law.29 This is a concrete application of deductive reasoning in matters of fact.

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In saying that deductive form of reasoning is concerned not with the demonstration of logical truths but with their application, that is, with the application of logically valid forms of argument in legal contex, 30 MacCormick sees the importance of emphasizing that the logical validity of an argument does not guarantee the truth of its conclusion. That the argument is valid entails that if the premisses are true, the conclusion must be true; but logic itself cannot establish or guarantee the truth of such premisses. Whether or not they are true is (or at least may be) an empirical question. Nonetheless, the conclusion which necessarily follows from a judgement contains a certain condition whose source is the rule of law. In the above analysis, the condition that finds its source in the rule of law was that if a seller has broken a condition of a contract which he was required to fulfil, the buyer is entitled to recover damages from him equivalent to the loss directly and naturally resulting to him from the sellers breach of the condition. Here the seller has broken a condition of the contract which she was required to fulfil. Therefore, in the instant case, the buyer is entitled to recover damages from her equivalent to the loss directly and naturally resulting to him from the sellers breach of the condition. And at this point, the judgement of the judge is justified. It is justified in the sense that The law ascribes to the jury the function of deciding on the basis of the evidence and the law whether the accused person is to be convicted or acquitted, and so the utterance by the jury of its verdict has the effect of making it true that the accused is for the further purpose of the law guilty or not.31 It is an obligation on the side of the judge thus to render justice according to law. The judge has a duty to give that judgement. It is an exercise of duty on the side of the judge when he pronounces his verdict. Here one recalls J. L. Austins performative theory of action. It is an instance of the performing of an institutionally defined act through the use of words, not an instance of the use of words to make a (true or false) statement of fact.) 32 As we have already noted, acts are not determined by logic; they are determined by the choices of the agents and that is as much true of the act of a jury pronouncing a verdict as of the act of the judge in deciding upon a claim or passing a sentence. The judge is in this sense justified in pronouncing a verdict that X, for example, who did A, is guilty of B after examining the rule of law that all who do A are guilty of B. It will be wrong for the judge to give any other verdict than guilty. A judge knows the proposition of law with which he has to work in a given case. Assume it to be of the form If p then q. He therefore knows that if he finds as facts
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propositions which entail p, he will be committed to the proposition q by way of conclusion. Suppose that q is for some reason a conclusion disagreeable to him in the context of a particular case. His knowledge gives him an obvious escape hatch. He can simply say that he does not find certain facts proven, and therefore p is not the case. Equally, if he is desirous of reaching the conclusion q, he needs only say that he finds p true in the instant case. So, logical though his argument will be on the face of it, it is no more than rationalization, since he determined its course by the way in which he chose to find the facts.33 Rules, according to MacCormick, are not self-applying. They are applied by an individual, the judge. In applying this rule, the judge takes it upon himself to know which rule to apply. Hence the judge does not act in arbitrariness. Instead, since it is the requirement of law that a plaintiff/pursuer must state and justify any claim he makes against a defendant, and likewise a requirement that any prosecutor must frame a specific charge or charges against a particular accused person and prove it or them beyond reasonable doubt, it is legallyand logically--- justified to absolve or acquit the defendant when that requirement is not met... 34 This brings us to what MacCormick calls the logic of acquittal and the burden of proof.35 The judgement against the first plaintiff, Mrs Tarbard, was not a judgement carried out arbitrarily. It followed the rule of law and the logic of acquittal and bears the burden of proof. The rule of law upon which this judgement stands admits that the party who initiates legal proceedings, whether as plaintiff (pursuer) or prosecutor must state and prove his own case; in part that is the point made by saying that he bears the burden of proof . In conclusion, what we are saying is that for, MacCormick, deductive justification practically takes place within a framework of underpinning reasons which it does not explain.

3. Presuppositions of Deductive Justification MacCormick is of the conviction that deductive model of reasoning, as he presents it, operates within some basic presuppositions which make deductive arguments a sufficient justification of legal decisions in certain cases. He says: Given certain presuppositions about the nature of legal systems and the obligations of legal officials, such justifications are conclusive.36 The case of Mrs Tarbard and Mr. Daniels remains a take-off point in enlisting the basic features of these basic presuppositions. Mrs. Tarbard was liable in damages to Mr. Daniels; the judgement of the judge says, for she sold an item (bottle of lemonade), which turned out to be unmerchantable to Mr. Daniels. This is not enough for the judges
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justification of decision. To find what completes the justification of this argument, it is required of one more premises: If in any case one party to litigation establishes that the other party is legally liable to him in damages, then the judge must give judgement in favour of the successful litigant. It is from this premises that we arrive at some basis presuppositions of law. Firstly, as pointed out by MacCormick, the judge recognizes that he has a duty to apply the rules of law whenever they are relevant and applicable. This is a presupposition of an existing judicial function. It is an accepted fact among lawyer and judges that whenever a given set of operative facts occur (p), then a given legal consequence must follow (q). Or again, whenever a judge in a given case finds facts amounting to an instance of p, the n the relevance of the legal rule to the case is established, and thus the legal consequence q is to be applied. The truth implied in the above is that the judge in virtue of his office knows and applies each and every one of those rules which are rules of law whenever it is relevant and applicable to any case brought before him. The question that seeks for answer therefore is: how is the judge able to identify this rule of law which he is bound to apply? What are the criteria for their recognition or identification? To answer this question, we are plunged into the heart of legal theory. One has to recall that it is the defining characteristics of legal positivism that every legal system comprises or at least includes, a set of rules identified by reference to common criteria of recognition and that what constitutes these criteria as criteria of recognition for a legal system is shared acceptance by the judges of that system that their duty is to apply rules identified by reference to them. 37 Every genuine positivist holds to this view that all rules which are rules of law are so because they belong to a particular legal system and that they belong to the system because they satisfy formal criteria of recognition operative within that system as an effective working social order. This thesis, as it is evident to recall, was first put forward in very similar terms by H.L.A. Hart 38 and secondly by Joseph Raz39 and thus bears a recognizable relation to opinions advanced by many other theorists afterwards. In any case, what is implied is that there are criteria for identifying what constitutes as a rule of law. This view is not limited to the positivist alone. It is also attributable to natural lawyers, for they do not necessarily deny that legal systems establish legislative processes whose product counts as valid law because it satisfies accepted criteria of recognition. Their point of departure or mark of difference between the positivists on this issue is that they believe that although it is a necessary condition, it is not a sufficient one of the validity of enacted rules. A natural lawyer, consequently, would not accept that the criteria of
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recognition are a sufficient condition for identifying what constitutes as a rule of law. To be truly valid, they argue, such rules must satisfy or at least not conflict with more basic principles of law whose status as law is not dependent upon any kind of enactment or acceptance or recognition.40 Here MacCormick writes: (A)ny mode of evaluative argument must involve, depend on, or presuppose, some ultimate premises which are not themselves provable, demonstrable, or confirmable in terms of further or ulterior reasons. In that sense, our ultimate normative premises are not reasoned, not the product of a chain of logical reasoning. 41 The basic criteria of recognition of these rules are located in the rule of recognition, which functions by way of shared acceptance by the judge as well as the people. This is a presupposition that recognizes that the judges are judges because there are rules that make them so and the rules that make them so, among others, are rules of law because the judges recognize them as such. MacCormick opines: Courts are not self-sustaining institutions endowed with legitimacy by their own say so, clothed with might by their own bodily vigour. Instead, they are institutions established by a wider community from which they derive their legitimacy and authority as determiners of controversies. Thus the forcefulness of the order they issue depends in the first instance on acceptance of their authority by those to whom the orders are addressed, and in the second instance...on acceptance of their authority by enforcement officials who do wield some degree...of collective might. 42 The above implies a shared and accepted norm among judges, which in-turn postulates the existence of some group of people who ascribe to some individual or individuals of their number the function of determining controversies. What this means also is that when a dispute or controversy cannot be settled between the disputants and their friends, there must be some socially recognized obligation to refer the question to a

particular person, or one from a particular group, or a particular group of persons. On the other hand, a socially recognized obligation does not mean one that everyone in a society recognizes or accepts. It is rather one which some persons in a society recognize or accept as applying to all members of what they define as the society. Such attitudes are significant for other people when held by people who exercise some degree of social power or influence. In this case, there is a socially recognized obligation on that judge or those judges to ordain that the dispute shall be settled in some given way and there must be a socially recognized obligation on the parties to accept that ruling.

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The recognition of this simple truth can only be effective or operative if the judge or judges share in the socially accepted criteria of recognition of the set code of rules which they themselves feel obliged to apply. After all, it is their acceptance that decides the exact effect of the criteria of this recognition. On another note, one can say that the presuppositions, as we can find or discover them here include the fact that the judge himself is able to identify all those rules which are rules of law and which he is duty-bound to apply because of the presence of the rules of recognition which serve as criteria or recognition or what MacCormick calls validity thesis . This presupposition sets forth what counts as a rule of law for this purpose. MacCormick also thinks that it is a shared thesis between positivism and natural law thinking that legal systems have criteria, sustained by acceptance in the society whose system it is, and satisfaction of which is at least presumptively sufficient for the existence of a rule as a valid rule of the system. He writes conclusively: It is then a shared thesis as between positivistic and natural law thinking that legal systems have criteria, sustained by acceptance in the society whose system it is, satisfaction of which is at least presumptively sufficient for the existence of a rule as a valid rule of the system. (For shortness I shall hereinafter call that the validity thesis.) It is that shared validity thesis which is presupposed when we treat deductive justification of legal decisions as sufficient and conclusive: given a valid rule if p then q, and given that an instance of p has occurred, a legal decision which gives effect to q (which expresses a legal consequence) is a justified decision. 43 Having said this, we can therefore conclude with MacCormick that these presuppositions are the underpinning reasons for accepting the systems criteria of validity. They have an importance which cannot be over-looked. Only in some cases do they come overtly to the surface in litigious argument and judicial opinions. Only in these rare cases are they reasons necessarily offered as essential to the explicit justification of decision. 4. Limits of Deductive Justification MacCormick, nevertheless, was deeply aware of the limitations of deductive reasoning when applied to legal contexts. He does not think that deductive reasoning applies in all cases. He is of the view rather that in some legal cases and situations, the judge runs short of rules and at that point, such deductive justification is not possible. There is more to legal reasoning than deduction. MacCormick carefully writes:

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By examining these presuppositions we shall also put ourselves in a position to determine the limits of deductive justification and thus to raise the main question of this book, namely, How can decisions be justified when no deductive argument is sufficient to justify them?40 MacCormick further identifies what constitutes these limitations. First and foremost, there is the problem regarding the choice of premises to be locked together in a deduction (or series of deductions). In Legal Reasoning and Legal Theory, MacCormick focuses primarily on the challenge of finding the appropriate normative premise(s) of the legal syllogism, but in his later work, he tried to explain the criteria we use to select our minor premises. 44 It is

clear to him that law is not always clear and that it might harbour apparent contradictions and gaps, all of which would demand more rational resources than deductive argument can furnish. Which, then, are the legal premises from which we should start our deductive argument? An epistemological positivist, as far as he would be interested in giving this question an answer, would have to say that normative legal premises are those that best explain the behaviour of the legal officials. This is not without some problems. What is important, however, is to perceive that this way of conceiving the major premise sees it as a description of certain facts. That is apparent when positivists are asked to explain what a legal justification might possibly be. They are often pushed to say something along the lines that legal justification means something entirely different from what is meant by the normal use of justification in practical reason. And indeed, words like duty and obligation, when applied to legal contexts, are descriptive rather than prescriptive concepts (or, as Kelsen would have it, are prescriptive but have no ultimate claim to guide behaviour). Having a legal obligation or a legal duty does not mean that one has to act in a particular way, unless one pushes the dissociation to say that legally, one has to act in a particular way. But one can only push the dissociation thus far, since at the end of the day, ones action is only one. And the ultimate question would, of course, not be whether one should do something from a particular point of view (law, etiquette, etc), but whether one should do something at all. Let us go back to the limitations of purely deductive arguments. It is not only the case that we would not know for sure the status of our major premise (if it is simply a description of a complex social fact or else a norm with practical punch). The major premise is often difficult to ascertain because the legal sources from which we derive them are not entirely clear. They are, for instance, expressed in natural language (which is inherently open textured, as Hart has argued45); also legal sources are complex and their interplay itself might
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give rise to competing interpretations. However, it is clear that other argumentative strategies are called for. Here MacCormick elaborates on Harts insight that there are specifically judicial virtues, with the twist that, for MacCormick, the argumentative strategies derived from those judicial virtues are integral to a description of law. If laws foundation is, ultimately, practical reason, it follows that those argumentative strategies that help judges use the law to orient action cannot be lightly dismissed as nonlegal. There is no need here to go into any detail on the legal argumentative strategies identified by the Scottish philosopher, which include arguments from coherence 46, arguments of consistency47, a qualified form of Consequentialist argument48 and arguments that help the legal decision-maker to cope with the particularity of the case, without being blinded by universal legal propositions, among others. It is important to acknowledge both the descriptive and prescriptive methods, attached by MacCormick to those arguments. Those arguments form what MacCormick dubbed second order justification, which we shall be treating in detail later. First order justifications, on the other hand, are effectively the syllogistic inference that makes the backbone of legal arguments connecting some universal premise about the law with some particular premise about facts (and allowing for very complex degrees of interconnection). A second order justification is a justification of the premises used in the syllogism(s) and that is not itself simply another syllogism. It might need inductive or analogical forms of argument (as it happens in arguments based on coherence), or it might take a test of universilizability, which itself might be conceived in many different ways which are not reducible to a syllogism, or it might combine different kinds of arguments, and so on. But external justification is still legal justification, and it is so in two related ways. Firstly, they are legal in the sense that no description of the nuts and bolts of the legal system would do without giving them pride of place. If a theory of law brushes those forms of arguments aside by referring to them as merely moral, it is bound to be (at best) an incomplete theory of law. The legal theorist should not underestimate the centrality of legal reasoning to the phenomenon of law. Secondly, they are arguments about sources of law which are institutionally created. That is to say, they apply to law that is created by certain acts of certain agents in certain contexts. The law to which those arguments apply is primarily created. The best way to understand MacCormicks particular stance on law as a practical reason would be to see it as an attempt at providing a middle way between Dworkins ultra rationalism and the exaggerated voluntarism of most epistemic positivists. While the former
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tends to obscure the fact that law is an institution, that is to say, it is created by contingent social decisions by social actors and the community at large, the latter is blind to the fact that law can only derive its sense from a broader conception of practical reason (and, consequently, legal decision-making can only be seen as part of rational decision-making).49 Between the Scylla and Charybdis of ultra rationalism and voluntarism stands MacCormick institutional theory of law.50 MacCormick states that law should be understood as an institutional normative order. While its institutional nature would differentiate law from general morality and general practical reason, its normative nature would differentiate law from the raw reality of politics and social fact. Now there are a number of distinct conceptions of what counts as an institution. The most relevant to understanding MacCormicks ontology is the philosophical sense that MacCormick derives from E. Anscombe and J. Searle. 51 Constructing his theory on that canon, MacCormick conceives an institution as a set of rules that determines the creation of an instance of the institution (institutive rules), establishes the consequences of the creation of that institution (consequential rules) and the disappearance of a particular instance of the institution (terminative rules) 52. What results from that is an antireductivist metaphysics that resonates with Webers comprehensive sociology, Peter Winchs idea of social science and Harts conception of law 53. Institutions are real entities and not simply subjective appropriations of the physical reality. Although they might be dependent on aspects of physical reality54, they exist as separate beings to that physical reality. To say that law is institutional means to accept the reality of legal sources (and, more abstractly, norms) as objects. Moreover, those are objects created whose existence is contingent on the incidence of institutive and terminative rules. But they are created as elements that a particular community institutes in order to bear on the practical reason of its members (and officials). So they are, at the same time, objects that can be described with an appropriate level of detail and abstraction (paradigmatically in legal doctrine), but which should also be incorporated into practical reasoning by the appropriate social players (and, ultimately, by the whole citizenry). That is the way in which MacCormick attempts to explain how law can be understood descriptively (as Hart famously set out to do in the preface of The Concept of Law) and prescriptively (as an integral part of practical reason). On a general note, these limiting factors constitute problems in the application of rules of law. MacCormick identifies also the hard case problem. Here he broadly endorses (but

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with qualifications, as we will later see) the idea that there may be clear cases as well as difficult or hard cases in the application of rules of law. It is a very obvious truth that not all legal rules, not even all legislated rule in fixed verbal form, can always give a clear answer to every practical question which arises. Almost any rule can prove to be ambiguous or unclear in relation to some disputed or disputable context of litigation. Rules being formulated in language, they are (as H.L.A. Hart has pointed out 55) both open textured, and vague in relation to some contexts at least.56 This idea is famously espoused by H.L.A. Hart in his well- known criticism of both formalism and rule-scepticism.57 Hart himself had thought that the clear (or plain, in Harts language) cases, in which official and private conducts are swiftly guided by determinate rules, were indeed the large majority.58 This is an assumption that, as we have seen, supraguides as well MacCormicks own defence of the deductive model. But what constitutes clear and unclear cases? Cases in which there is clearly formulated rule ready to be used as a major premise are clear (or obvious) cases. The clarity or obviousness of a case depends, according to MacCormick, on what one might call semantic and pragmatic factors. On the semantic level, a case is clear when it falls under a clearly formulated rule. In this sense, the clarity of a case is a function of the language used by the rule-giver. On the other hand, it is pragmatic if a case is clear when the interpreter has no compelling reason to depart from the plain meaning of the rule-formulation. MacCormick, by this view, seems to rely also on a different, and so to speak sociological, understanding of the pragmatic dimension of clarity. A case, in this

understanding, is clear when nobody has in effect thought of questioning it, or when a court has not been convinced by the arguments put forward by a counsel in order to question a putatively clear case.59 The same approach is evident in his other work, Rhetoric and the Rule of Law where he writes that a hard case is a case in which a problem has been raised, clear cases are ones that no one has in fact problematized.60 I find rather unconvincing this last shift from the normative to the factual dimension of what a clear case is. Indeed, the difference between the two is obvious. From the normative point of view, a clear case is a case that cannot plausibly (i.e., from the point of view of the accepted canons of rational and reasonable legal discourse in the relevant legal culture) be questioned. From the factual point of view, instead, a clear ca se is a case that has not been questioned so far, or that has been successfully questioned. True, at times, there can
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be an overlap between these two pragmatic dimensions. For instance, the fact that nobody so far has questioned a certain kind of case (for instance, a long-established interpretation of a statute) can be deemed by an interpreter as a good reason not to question it. But we can say this only if we assume a normative criterion, for instance, one that values stability and continuity in interpretations. So the factual dimension of the pragmatics of clear cases (what has happened so far in the legal community) is relevant only in the light of a normative criterion (what the interpreter has good reason to do). When the above mentioned conditions do not obtain, the interpreter faces a hard case. More precisely, there is a hard case when the relevant rule is not linguistically clear (whether formulation is obscure, or because it is not clear if some facts are indeed a concrete instance of the concepts described in general and abstract terms in the formulation of the rule) 61 There is also a hard case when the relevant rule is indeed clear but the interpreter has sound reasons to depart from the obvious meaning, or when there is no rule at all to be straightforwardly applied to the case, but the case appears nonetheless relevant from the point of view of the legal system as a whole.62 Now in such cases, the justification of the legal decision is no more entirely contained in the syllogism. The interpreter needs to give further arguments in order to justify his reconstruction of the normative premise. This is what MacCormick calls second -order justification. Here, it is clear, by definition, that in hard cases the law does not provide the interpreter with a definite answer. But, according to MacCormick, in such cases the interpreter does not play a legislative role either. The interpreter is not at liberty to choose any ruling whatsoever as she pleases. J. W. Harris has point ed out that MacCormicks identification of the limitation of deductive reasoning can be distributed under three headings namely problems of relevancy, problems of interpretation, and problems of classification50. In Harris understanding, a problem of relevancy arises when it is open to dispute what legal rule is relevant to the issue. The typical case is a dispute arising in the area of case law, as in Donoghue v. Stevenson63 where the majority of the House of Lords thought that there was, and the minority thought there was not, a rule of law imposing a duty of care on manufacturers vis-a-vis consumers. Harris further says that a problem of interpretation arises when the words of a statute are ambiguous, and the Court has to choose between two interpretations. For example, in Ealing London Borough Council v Race Relations Board,64 the majority of the house of Lords held that a statutory rule prohibiting discrimination on the ground of national origin did not apply to discrimination on the ground of legal nationality, so that the council was not
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acting unlawfully when it limited its housing list to British subjects.

A problem of

classification arises where the Court has to decide whether the facts admitted or proved do or do not come within a factual category stipulated in a rule. For example, in MacLennan v MacLennan,
65

Lord Wheatley held that artificial insemination was not classifiable as

adultery. MacCormick agrees with Harris that problems of interpretation and of classification are, in truth, logically equivalent, since both involve choice between two competing rulings. They are distinguished only for institutional reasons, having to do with the distinction between questions of law and questions of fact. Now, a problem is treated as one of classification rather than one of interpretation and therefore a question of fact rather than one of law, in situations where appeal to higher courts is limited to questions of law. Here, it is left that this particular question ought to be settled by the lower court or where an issue is one as to which, it is felt, future cases should not be hampered by precedent which they will not be if the issue is regarded as one of fact. Reasoning in relation to these three sorts of problems is, MacCormick argues, limited as to form by the requirements of formal justice, and as to substance by the requirements of consistency and coherence. Within these limits, the reasoning is Consequentialist; except that no ruling, however desirable its consequences, is legally permitted unless it is authorised by legal principle or is analogous to an existing legal rule. 5. Second-Order Justification Second-Order justification is a possible way out to an interpreter who finds out that he has run out of rules and is at the point of applying judicial discretion. Second-order justification involves justifying choices; choices between rival possible rulings. These are choices to be made within the specific context of a functioning legal system; that context imposes some obvious constraints on the process66. Second-order justification involves testing of fact as in the scientific arena. It is like the Popperian theory of scientific justification where the logical element constituting scientific discovery is the logic of testing and which do not happen in vacuum. So in the legal system, what counts in testing concerns what happens in the world. The test asks: what is the empirical evidence or effect that it has in the world at large? Legal decisions do not exist in a vacuum. They deal with the real world as do scientific hypotheses; hence, it is in the context of a whole body of knowledge, and in this case, the whole corpus of the normative legal system, rather than a corpus of descriptive and explanatory theory.67 Legal decisions, following this reasoning, make sense in the world and
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they also make sense in the context of the legal system. They are based on rulings which make sense in the context of the legal system. And just as scientific justification involves testing one hypothesis against another, and rejecting that which fails relevant tests, so it is with second-order justification in the legal system. MacCormick contends:

Second-order justification in the law involves testing rival possible rulings against each other and rejecting those which do not satisfy relevant tests---relevant test being concerned with what makes sense in the world, and with what makes sense in the context of the system.68 At this point, too, we recall that H.L.A. Hart has pointed out that in such situations where there are insufficiencies of existing rules, in hard cases, the judge or interpreter should resort to using his discretion in a strong sense of it in the sense that the judge is free from every form of legal constraint. MacCormick does not accede to this form of reasoning in discretional cases. Rather he advocates for a weak form of discretion. For MacCormick, in such moments, too, where the judge uses his discretion, he is restricted by the constraint of formal justice69. These constraints are derived from universalization (the need to conceive of the decision at hand as reproducible in future cases), consistency (the need to avoid contradictions with other existing rules), coherence (the need to look for a decision that fits well with the recognized principles of the legal system), and consequentialist arguments (the need to avoid a decision that would yield absurd consequences). 70 The requirement of formal justice is that the judge must treat like cases alike and different cases differently, and give to everyone his due.71 MacCormick further comments, implies that I must decide todays case on grounds which I am willing to adopt for the decision of future similar cases, just as much as it implies that I must today have regard to my earlier decisions in past similar cases. Both implications are implications of adherence to the principle of formal justice; and whoever agrees that judges ought to adhere to the principle of formal justice is committed to both these implications.72 In this way, MacCormick advocates that judges ought to adhere to the principles of formal justice, as a minimal requirement of doing justice at all, and a fortiori justice according to law. It is his observation also that formal justice in such matters includes making choice between the rational and the arbitrary in the conduct of human affairs, and in asserting it as a fundamental principle that human beings ought to be rational rather than To treat like cases alike, as

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arbitrary in the conduct of their public and social affairs. On the practical level, MacCormick argues that it is a principle of formal justice if I decide todays case in the knowledge that I must thereby commit myself to settling grounds for decision for todays and future similar cases. There is no conflict today, though there will be in the future if today I articulate grounds of decision which turn out to embody some substantive injustice or to be on other grounds inexpedient or undesirable. That is certainly a strong reason for being careful about how I decide todays case.73 Here, the justifying discretion must involve the making of a ruling which is (in the strict logical sense) universal, or generic, even though the parties own dispute and its facts are irreducibly individual and particular, as must be the orders issued to them in termination of the dispute. On another note, MacCormick states that the limitation of formal justice means that no decision may be given which cannot be universalized. It is formally irrational to say, for instance, that X is the right solution in circumstances Y, unless you accept that there is a class of Xs which will always be right for the class of Ys. That does not mean that rules can have no exceptions. Where there is an exception, there is something present beside Y. MacCormick makes it clear that what is formally essential is universability, not generalisation. For so far as formal justice is concerned, one could support the holding in Donoghue v Stevenson by a universal rule to the effect that all manufacturers of ginger beer are liable to residents of Paisley, who suffer foreseeable damage from decomposed snails in the manufacturers bottle. Again, MacCormick reasons that these factors acting as constraints to judicial discretion are ones which are not in themselves provable, demonstrable, or confirmable in terms of further or ulterior reasons although that does not mean the same as saying that no reasons at all can be given for adhering to such ultimate normative premisses or principles or as grounds for action and judgement. Other factors that contribute in constituting constraint to justification of decision when the established rules run out as pointed out above include those needs of principles of correspondence and coherence. Correspondence principle seeks to define true statements as being those which correspond with a reality whose existence is independent of the statement,74 while coherence involves interpreting the directly visible, audible, performances of witnesses, appearance of productions, and such-like within a web of general assumptions, beliefs, and theoriesno doubt rather inexact and unscientific theories. 75
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Legal rulings are normative. They do not report, they set patterns of behaviour; they do not discover the consequences of given conditions, they ordain what consequences are to follow upon given conditions. They do not present a model of the world, they present model for it.76 In the final analysis, second-order justification is also not without regulation, according to MacCormick. He contends that within the limits set forth by the requirements of formal justice, consistency and coherence, and within the range authorised by principle and analogy, legal reasoning is essentially consequentialist. This is to say that it is equally constrained by the consequentialist principle as those of principles of consistency and coherence. The consequentialist principle considers the consequences of making a ruling one way or the other, to the extent at least of examining the types of decision which would have to be given in other hypothetical cases which might occur and which would come within the terms of the ruling.77 Consequentialist principle, according to MacCormick, is the first essential element of second-order justification and it is essentially both evaluative and in some degree subjective.78 It is evaluative in the sense that it asks about the acceptability and unacceptability of such consequences. It is subjective in the sense that while judges evaluate the consequences of rival rulings, they may give different weight to different criteria of evaluation, as to the degree of perceived injustice, or of predicted inconvenience which will arise from adoption or rejection of a given ruling. 79 In most problems of relevancy, interpretation and classification, more than one decision may be formally just (universalised into a ruling), and more than one ruling consistent and coherent with the rest of the law and authorised by principle or analogy. When this is so, the perceived consequences of alterative rulings are what do (and ought to) justify judicial decisions. In this sense, MacCormick says his theory is a variety of ideal ruleutilitarianism. He prefers the label consequentialist to utilitarian because he is anxious to stress that there is no Benthamite objective scale for measuring good and bad consequences. His view on this point should be contrasted with the theory of the economic analysis of law that, in common law contexts, at least, the underlying logic of consequentialist reasoning is related to an objective scale. MacCormick identifies three different senses of consequences: First, there are considerations of corrective justice, i.e. for every wrong there ought to be a remedy. Secondly, there are considerations of common sense; i.e. a judicial expression which boils down (he says) to perceptions of community moral standards. Third, there are considerations
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of public policy. The latter includes both direct public interest in bringing about changed behaviour, and also questions of convenience or expediency such as the desirability of having a clear rule or the floodgates argument, i.e. allow this claim, and the courts will be flooded out with litigation.80 A particular decision may be shown to be irrational, if the foreseen consequences were premised upon incorrect facts. But there comes a point at which the consequences may be agreed and yet honest men still differ as to the rulings that are justified. At this stage, the choice is irreducibly subjective. For that reason, MacCormick disagrees with Dworkins view on discretion. The second essential element of second-order justification, according to MacCormick, concerns what makes sense in the system. The basic idea, here, is of legal system as a consistent and coherent body of norms whose observance secures certain valued goals which can intelligibly be pursued all together. The idea of consistent body of norms, according to MacCormick, is adopted on the fact that it is consistent and not contradictory of some valid and binding rule of the system. He asserts that not merely must a decision be justified by good arguments from consequences and/ or from principle or analogy. It must also be shown to be not inconsistent with established rules. But whether a given proposed ruling is or is not inconsistent with an established rule may plainly depend upon the interpretation which is put on established rule.81 What this means is that judges recognize an obligation not to controvert established rules of law, not to institutionalize conflicting rules; but rather to give only such rulings as can be fitted without inconsistency into an already established body of rules. Coherence is concerned with a certain rational principle, an order or arrangement within the calculated body of norms. One can imagine a random set of norms none of which contradict each other but which taken together involve the pursuit of no intelligible value or policy. On this account, Harris writes that MacCormicks requirement of coherence means that, eve n where there is no question of logical contradiction, the legal reasoner should not put forward a ruling which cannot be coherently sustained in conjunction with other rules in the system. Rules requiring different coloured cars to observe different speed limits would not be logically inconsistent, but would be incoherent since no set of evaluation could justify them. For instance, If a proposed ruling promotes value X, by indicating that a certain pattern of behaviour or a certain state of affairs is desirable, and it would not make sense to pursue value X whilst also pursuing values embodied in other rules of law, then it is irrational (MacCormick argues) to adopt the proposed ruling. The concept of coherence
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involves of single

attributing rational purpose to the law, rather than regarding it as a wilderness instances.82

In Donoghue v Stevenson, Lord Atkin said that in the English law, there must be, and is, some general conception of relation giving rise to a duty of instances. He then went on to formulate his famous neighbour principle---the duty is owed to persons whom you can

reasonably foresee would be likely to be injured by your careless acts or omissions. According to MacCormick, the fact that a proposed ruling is consistent and coherent with the rest of the system is legally permitted if authorised by principle or analogy and legally justified, if it would have better consequences than any other similarly authorised ruling. On this account, MacCormick rejects Dworkins definition of principles as propositions describing rights. For him (MacCormick), principles are relatively general norms which are conceived of as rationalizing rules or sets of rules.83 In the view of the person putting it forward as a principle, a legal principle explains and justifies existing legal rules. It also authorises any new ruling which it would also explain and justify. Having this authorising function, still, a principle may, through regular explicit application by the courts, acquire great presumptive weight in its own right. However, it never fully justifies a decision. It is only consequences that do that. For instance, Lord Atkins neighbour principle explained and justified rulings in earlier cases, and also the ruling about manufacturers liability in Donoghue v Stevenson itself. Since then it has been used to authorise many other new rulings in the law or negligence. Still, it does not require them. Its persuasive force may be overridden by consequentialist arguments, as happened in Rondel v Worsley. There the House of Lords held that there would be unacceptable consequences for the administration of justice if barristers were liable for the foreseeable harm resulting from negligent conduct of litigation. At this point, one should recall that the validity thesis presents law as comprising or at least or including a set of valid rules for the conduct of affairs. Such rules must satisfy the requirement of consistence, at least by including procedures for resolving conflict. But rules can be consistent without the system being coherent as a means of social ordering, if order involves organization in relation to intelligibly and mutually compatible values. To the extent, however, that the rules are or are not treated as being instances of more general principles, the system acquires a degree of coherence. When problems of relevancy or of interpretation or of classification arise within the system, the requirement of coherence is satisfied only to the extent that novel rulings given can be brought within the ambit of the existing body of general legal principle.
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The requirement of consistency means that in deciding whether a certain rule is legally relevant (that is, whether that particular rule formulation can be said to be part of the law), or in choosing between two rules each of which is permitted by different interpretations of a statute or by different classifications of facts, no rule can be accepted which contradicts any other rule in the system. The system here means all the rules valid b y reference to criteria of recognition at the time when the decision is made. What are the reasons why this is a requirement of legal justification? MacCormick reasons in the following manner: There are limits to the ambit of legitimate judicial activity: judges are to do justice according to law, not to legislate for what seems to them an ideally just form of society. Although this does not and cannot mean that they are only to give decisions directly authorized by deduction from established and valid rules of law, it does and must mean that in some sense and in some degree every decision, however acceptable or desirable on Consequentialist grounds, must also be warranted by the law as it is. To the extent that the existing detailed rules are or can be rationalized in terms of more general principles, principles whose tenor goes beyond the ambit of already settled rules, a sufficient and sufficiently legal warrant exists to justify as a legal decision some novel ruling and the particular decision governed by it.84 In the first place, MacCormick connects legal reasoning and interpretation to a Hartian-positivists conception of law and specifically of legal validity. According to MacCormick, the legal syllogism, the deductive model of justification, operates with rules whose validity has been established according to the criteria set forth in a (Hartian-like) rule of recognition.85 In another note, MacCormick consistently stresses the role of principles both in legal reasoning, and in the possibility itself to conceive of the law as a system. While Hart considered it sufficient to base the idea of a legal system on the unifying concept of the rule of recognition, MacCormick stresses the importance that rules of a legal system be considered as parts of a meaningful whole. By this, the unity and identity of legal systems should be traced not just at a formal level (i.e., the system is the total sum of the norms that satisfy the formal criteria of validity set up by the rule of recognition) but also on a substantial level (it is vital that valid norms are coherent with the background principles and values of the system). Moreover, MacCormick does not follow Hart on judicial discretion (even if his analysis presupposes a Hartian framework, as noted above.) According to Hart, it seems that in those cases where no clear rule is available, the interpreter is left to her own devices, so to speak. The interpreter will have to make a choice not itself guided, let alone mandated by the law.

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On this point, however, MacCormick parts company with Hart, and indeed takes a kind of intermediate stance between Hart and Dworkin. Indeed on the one hand, and contrary to Hart, MacCormick endorses the possibility that the law still exerts some guidance also in hard cases. This is a possibility that Hart himself only came to endorse in later writing when he writes that when particular statutes or precedents prove indeterminate, or when the explicit law is silent, judges do not just push away their law books and start to legislate without further guidance from the law.86 This is so because, according to MacCormick, even if we run out of rules the law still limits the range of possible interpretive choices via the requirements of universability, consistency, coherence, and acceptability of the consequences of the ruling. On the other hand, MacCormick dismisses the theory, famously expounded by Dworkin, that there are right answers to legal questions also in hard cases. 87 MacCormicks argument to this effect is, shortly p ut, that as a matter of fact, the whole of principles, values, and consequentialist considerations that can guide the interpreter in hard cases are not, by their very natures, capable of giving just one answer to a legal problem. On the point of view of analogy, MacCormick states that a ruling is authorised by analogy if there is an existing legal rule or principle of the form: if P then Q, if the proposed ruling stipulates: if P/1 the Q, and if P/1 is similar to P. For instance, the situation of a salvor putting himself in danger to save property is similar to that of a rescuer putting himself in danger to prevent injury; so if there already exists a legal rule entitling the danger, the court is authorised (though not obliged) to announce a similar rule for salvors. However, the limits of analogical reasoning are set by the requirement that P, the operative facts of the rule or principle with which analogy is drawn, must be stated with reasonable specificity otherwise one could find vaguely-worded pronouncements in the books, analogical application of which would justify anything. In order to judge one answer as the best among many possible answers, we would need a theory (of law, of legal reasoning, etc.) that enables us to rank that answer first, but this would amount to say this also that that theory is the best, in front of other possible theories, and to say this it would in turn require that we have another (meta-) theory in the light of which we can judge what theory (among different possible theories available) is the best and so on, winding up in an infinite regress. 6. Towards Interpretivism

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The main concern here is still on the topic of the clear/hard cases. This is a distinction that, to be sure, MacCormick in previous work considered precarious, but not meaningless at all. 88 Consequently, it investigates the role that deductive logic in legal reasoning plays in relation to the topic of the right answer. All these theoretical shifts are connected, in turn, to MacCormicks substantial endorsement of a sort of interpretivist theory of law, much indebted to Ronald Dworkins legal philosophy.89 Simply put, interpretivist theories of law claim that the interpretation and identification of what the law requires; i.e. the truth of propositions of law, depend on an interpretation of the point and purpose of the institutions law and interpreting the point and purpose of an institution, in turn, requires putting that institution in its best light.90 Interpretivism, therefore, turns out to be an anti-positivistic approach, since it denies that the existence of the law is just a matter of social fact, the source thesis, and claims that it rather depends on both facts and values. In the classical manner, N. Stavropoulos, in his work, Interpretivist Theories of Law, conceives interpretivism as the view that, if true, a proposition of law is true in virtue of an

interpretive fact: in a nutshell, in virtue of the fact that the proposition follows from the best justification of a communitys political practice.91 In this phase of MacCormicks work, therefore, the distinction between clear cases and hard cases is still present, on the face of it and what it is more, is present in the curious pragmatic version already mentioned, but it appears now to be devoid of any practical significance.92 Remember that the original import of this distinction was to stress that the

former are capable of triggering immediately the deductive train of legal inference, while the latter requires interpretation (and second-order justification generally). Now MacCormick stresses instead the quite different thesis that interpretation is ubiquitous in law. 93 If so, then, there is always the need to resort to the whole panoply of interpretive arguments (from consistency, from coherence, and from consequences) that in the first phase were supposed to apply only to hard cases.94 Of course, there could be another way to rescue the theoretical difference between clear cases and hard cases. That would be to say that, even if interpretation is required in both kind of cases, only in some cases there is no right answer, and these are hard cases. But also this theoretical stance is now rejected by MacCormick, who now explicitly conceded that even in hard cases there could be one right answer.95 MacCormicks explanation of this is to me a bit obscure, but what is clear is that his view on the issue is more moderate than Dworkins.

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Indeed, while according to Dworkin there always is, in principle, one right answer to legal questions, according to MacCormick, the possibility that sometimes no right answer is available still looms large which makes it necessary, and inevitable, to resort to pure

authoritative decision in such cases. But is MacCormick right in maintaining that legal principles are, indirectly, identifiable by reference to Harts rule of recognition, in that they are always parasitic on the rules they underpin and justify? Supposing two lawyers contend for different principles, each of which, according to its proponent, underlies the same body of rules, and neither of which has yet been blessed with judicial recognition? Dworkin would say that the principle is a legal one which follows from the best political theory, having regard to institutional fit and moral truth. For MacCormick, legal principles explain and justify legal rules, which suggest that both candidates are already legal principles. On this ground, one wonders about the fate of the deductivist model, formerly espoused by MacCormick, within an interpretivist theory of law. Of course, MacCormick cannot claim any more, as he did in previous work, that in some cases the syllogism is all that we need in order to provide the justification of a legal decision. This is because now MacCormick acknowledges that interpretation is always in place (also in easy or clear cases, if we still want to use this jargon at all), and so there is always the need for the interpreter to justify her interpretive choices (in other words, legal justification always includes secondorder justification). But nonetheless, logic and the legal syllogism are still important conceptual tools in MacCormicks theory of legal reasoning, even if with a different role to play, i.e. that of a structuring tool for legal arguments. 96 Deductive logic and the legal syllogism are

instruments for an ex post assessment and rational reconstruction of legal argumentation; their role is to help individuate clearly the passages of any legal argument. 7. Interpretation and the Rule of Law Few observations are required to be made here on the relation between legal interpretation and the idea of the Rule of Law in MacCormicks work. In Legal Reasoning and Legal Theory, MacCormick writes that a theory of legal reasoning requires and is required by a theory of law. And that any account of legal reasoning makes presuppositions about the nature of law. Equally, theories about the nature of law, MacCormick believes, can be tested out in terms of their implications in relation to legal reasoning. 97 On this account, therefore, it becomes pertinent to treat and understand MacCormicks notion of law, otherwise called the Rule of Law.
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MacCormicks original position on the rule of law can be summarized from two main points. Firstly, in the legal conceptual scheme of MacCormick, the Rule of Law is to be understood as a law of rules (which is just another way in which MacCormick develops the legacy of Hartian positivism). Here, the law is made up of rules. The ruly character of law is what enables the law to secure many valuable aims, such as predictability, stability of expectations, fairness (i.e., giving the citizen fair notice of the content of the law), and equality. Of course, MacCormick observes that the ruleness of the law is not in itself sufficient to ensure the Rule of Law, at the very least, these rules also have to be clearly and publicly formulated, should not contradict each other, and have to fit in a coherent scheme of principles and policies upheld by the community at large. He says that law is, after all, an institutional normative order 98, and not simply a way to describe certain facts (or a set of prescriptions that do not have, in themselves, a clear claim n future behaviour). MacCormicks insistence that law be understood in the c ontext of general practical reason (i.e. as having a direct, although not final, bearing on action) is the reason, put at its most abstract, why MacCormick considered himself to be a post positivist. That does not mean that MacCormick did not assign an o ntological place for law in a description of the world. Indeed his institutional theory of law is precisely an attempt at justifying the thesis that legal objects (rules, groups of rules, etc) should belong to any acceptable ontology. It is a fundamental metaphysical question about the kinds of being that there is and his main source here is the distinction between brute and institutional facts put forwards by the likes of E. Anscombe and J. Searle. MacCormick never ceased to believe in that metaphysical conception that accepts the existence of not only physical facts, but also institutional facts. However, law, as an institutional normative order that can be described as existing in the world, gains its meaning from a general theory of practical reason. Having said this, a suggestion that seems to surface in the first phase of MacCormicks work concerns the connection between the Rule of Law and the democratic method. 99 In this framework, the scope of interpretation appears to be constrained in the first place by the need to respecting the (democratically produced) rules, when they are available (i.e., when there is a clear rule to be used straightforwardly as a major premise of a normative syllogism.) And this commands assigning priority to the literal meaning is most probably what the rule-giver had in mind (democracy), and since the citizens themselves are probably relying on such most obvious meaning (fairness). 100 The priority of literal meaning is not absolute, however. While, according to MacCormick, the interpreter has a prima facie duty to
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stick to the most obvious, literal meaning of the formulation of a rule, other pressing reasons could on occasion present themselves, pushing the interpreter to bend the meaning of the rule towards other, less obvious meaning. In such cases, the interpreter is entitled to search in the grey area of possible, less obvious meanings, provided that those less obvious meanings are still linguistically tolerable; moreover, the choice for a less than obvious meaning should be guided also by relevant principles and analogies (arguments from coherence with the overall body of the law). Finally, when no clear rule, or indeed no rule at all, is available, (in hard cases), the interpreter will show her loyalty to the Rule of Law by applying the principles of the system, as they can be reconstructed by imputing a rational aim (the ratio) to existing rules of law. In few words, then, we can say that in this first phase of MacCormicks work, Rule of Law values are connected to democratic values and they justify allowing only limited discretion to the interpreter; judicial discretion being delimited by the words used in the formulation of the rules in the first place, and then by the principles of the system. In MacCormicks later work, the democratic dimension of the Rule of law goes slightly out of sight. In Rhetoric and the Rule of Law, for instance, the references to issues of democracy and democratic method are mainly unrelated to the definition and the content of the Rule of Law. Indeed MacCormick seems now to embrace a more substantial conception of the Rule of Law in which the ruleness of the law is heavily supplemented by the requirement that those rules can be conceived as the determinations and concretizations of a (possibly coherent) body of values and principles. 101 Accordingly, now the primary focus of interpretation is not so much the clear words of the (democratically elected) legislator any more, but rather the system as a whole, under the guide of an overall sense of practical reasonableness.102 Moreover, MacCormick now acknowledges that legislative enacted rules cannot but be formulated in abstract and generic terms, and this makes them necessarily dependent on future interpretive concretizations (there are no more clear, interpretation-free, cases). And still, even in the face of a clearly formulated rule, the possibility of setting that rule aside is always an option; i.e. a rule is always defeasible for the sake of some weightier principles.103 All this is not by chance. Indeed, this squares perfectly well with MacCormicks conversion to some sort of interpretivist theory of law. So in this aspect of MacCormicks jurisprudential work, the role of the interpreter resembles more that of a counter-power, a guardian of the Rule of Law104 whose job is to ensure, by means of the available interpretive tools, the maintenance of the quality of the legal system as a Rule of Law. The role of the
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interpreter is now conceived of by MacCormick as deeply entrenched in the values of the (substantive) Rule of Law. So much so, that in cases of extreme violations of those very values perpetrated by those entitled of producing law, MacCormick assigns the interpreter her ultimate task: that of declaring that unjust law is not law at all (lex iniusta non est lex).

END NOTES 1. N. MacCormick., Legal Reason and Legal Theory, 229. 2. N. MacCormick., Legal Reason and Legal Theory, 233. 3. N. MacCormick., Legal Reasoning and Legal Theory, 19. 4. N. MacCormick., Legal Reasoning and Legal Theory, 41. 5. N. MacCormick., Legal Reasoning and Legal Theory, 38. 6. N. MacCormick., Legal Reasoning and Legal Theory, 38. 7. N. MacCormick., Legal Reasoning and Legal Theory, 24. 8. N. MacCormick., Legal Reasoning and Legal Theory, 28 9. N. MacCormick., Legal Reasoning and Legal Theory, 12-13.

10. N. MacCormick., Legal Reasoning and Legal Theory, 25. 11. N. MacCormick., Legal Reasoning and Legal Theory, 19. 12. N. MacCormick., Legal Reasoning and Legal Theory, 19. 13. N. MacCormick., Legal Reasoning and Legal Theory, 21. 14. N. MacCormick., Legal Reasoning and Legal Theory, 21. 15. N. MacCormick., Institutions of Law (Oxford: Oxford University Press, 2007), 11 16. N. MacCormick., Rhetoric and the Rule of Law, (Oxford: Oxford University Press, 2005), 214
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17. N. MacCormick., Legal Reasoning and Legal Theory, 19. 18. N. MacCormick., Legal Reasoning and Legal Theory, 30. 19. N. MacCormick., Legal Reasoning and Legal Theory, 29. 20. N. MacCormick., Legal Reasoning and legal Theory, 30-32. 21. N. MacCormick., Legal Reasoning and Legal Theory, 229. 22. O.W. Holmes., The Common Law (1881) in Pragmatism: A Reader ed., Louis Menard, 137. Quoted from Francis, O. C. Njoku, Studies in Jurisprudence A Fundamental Approach to the Philosophy of law, 2ed. (Owerri: Claretian Institute of Philosophy, 2007), 141. 23. N. MacCormick., Legal Reasoning and Legal Theory, 24. 24. N. MacCormick., Legal Reasoning and Legal Theory, 25. 25. N. MacCormick., Legal Reasoning and Legal Theory, 139. 26. N. MacCormick., Legal Reasoning and Legal Theory, 139. 27. G. Pino., Neil MacCormick on Interpretation, Defeasibility, and the Rule of Law. Online retrieved from www.http://ssrn.com/abstract=173045 on 20/3/2011, 6. 28. N. MacCormick., Legal Reasoning and Legal Theory, 275. 29. N. MacCormick., Legal Reasoning and Legal Theory, 139-140. 30. N. MacCormick., Legal Reasoning and Legal Theory, 74. 31. N. MacCormick., Legal Reasoning and Legal Theory, 25. 32. N. MacCormick., Legal Reasoning and Legal Theory, 34-35.

33. N. MacCormick., Legal Reasoning and Legal Theory, 35. 34. N. MacCormick., Legal Reasoning and Legal Theory, 36. 35. N. MacCormick., Legal Reasoning and Legal Theory, 44.
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36. N. MacCormick., Legal Reasoning and Legal Theory, 41. 37. N. MacCormick., Legal Reasoning and Legal Theory, 100. 38. N. MacCormick., Legal Reasoning and Legal Theory, 57. 39. H.L.A. Hart., The Concept of Law, (Oxford: Oxford University Press, 1961), 121150. 40. J. Raz., The Concept of a Legal System, (Oxford: Oxford University Press: 1970), ch. 8. 41. N. MacCormick., Legal Reasoning and Legal Theory, 62. 42. N. MacCormick., Legal Reasoning and Legal Theory, 5 43. N. MacCormick., Legal Reasoning and Legal Theory, 55. 44. N. MacCormick., Legal Reasoning and Legal Theory, 53. 45. N. MacCormick, Rhetoric and the Rule of Law, chp.11. 46. H.L.A. Hart., The Concept of Law, 97. 47. N. MacCormick., Legal Reasoning and Legal Theory, 152 48. N. MacCormick., Rhetoric and the Rule of Law, 189. 49. N. MacCormick., Rhetoric and the Rule of Law, 214. 50. N. MacCormick., The Concept of Law and The Concept of Law. Article by MacCormick, Retrieved article online from www.ojls. www.ojls.oxfordjounals.org/content/14//. 24.05.2011. 4 51. N. MacCormick., The Institutional theory of Law Article by MacCormick, Retrieved online from www.ojls.oxfordjournals.org/content/14/1/1 on 24.05.2011. 1. 52. E. Anscombe., and J. Searle., Institutionalism Online article derived from www.oxfordJLegalStudies (1994)14. (1):1-23.doi:10.1093/ojls/14././ 53. N. MacCormick., and Weinberger, O., An Institutional Theory of Law, (Dordrecht: Kluwer, 1986), 52-53. Quoted from Vittorio Villa, Neil MacCormicks Legal
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Positivism, in oxford journals, retrieved online from www.ojls.oxfordjournals.org/content/14/1/1 on 24.05.2011. 6. 54. M. La Torre., Institutional Theories and Institutions of Law, (Oxford: Ashgate, 2004), 71. 55. MacCormick, N., and Weinberger, O., An Institutional Theory of Law, 38. 56. H.L.A. Hart., The Concept of Law, 120. 57. N. MacCormick., Legal Reasoning and Legal Theory, 65-66. 58. H.L.A. Hart., The Concept of Law, 121. 59. H.L.A. Hart., The Concept of Law, 135. 60. N. MacCormick., Legal Reasoning and Legal Theory, 199. 61. N. MacCormick., Rhetoric and Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005), 51-52. 62. N. MacCormick., Legal Reasoning and Legal Theory, 203-213. 63. N. MacCormick., Rhetoric and the Rule of Law, 40-43. 64. J.W. Harris., Legal Philosophies, (London: Butterworths, 1980), 199. 65. N. MacCormick., Legal Reasoning and Legal Theory, 251 66. N. MacCormick., Legal Reasoning and Legal Theory, 147.

67. N. MacCormick., Legal Reasoning and Legal Theory, 73.

68. N. MacCormick., Legal Reasoning and Legal Theory, 106.

69. N. MacCormick., Legal Reasoning and Legal Theory, 73.

70. N. MacCormick., Legal Reasoning and Legal Theory, 75.

71. N. MacCormick., Legal Reasoning and Legal Theory, 75-76.

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72. N. MacCormick., Legal Reasoning and Legal Theory, 91.

73. N. MacCormick., Legal Reasoning and Legal Theory, 75.

74. N. MacCormick., Legal Reasoning and Legal Theory, 75-76. 75. N. MacCormick., Legal Reasoning and Legal Theory, 105. 76. N. MacCormick., Legal Reasoning and Legal Theory, 106. 77. N. MacCormick., Legal Reasoning and Legal Theory, 103-104. 78. J.W. Harris., Legal Philosophies, (London: Butterworths, 1980), 105. 79. N. MacCormick., Rhetoric and Rule of Law, 106. 80. N. MacCormick., Rhetoric and Rule of Law, 105. 81. N. MacCormick., Legal Reasoning and Legal Theory, 232. 82. N. MacCormick., Rhetoric and Rule of Law, 123. 83. J.W. Harris., Legal Philosophies, (London: Butterworths, 1980), 201. 84. N. MacCormick., Legal Reasoning and Legal Theory, 232. 85. N. MacCormick., Institution of Law, 279. 86. H.L.A. Hart., The Concept of Law, 132. 87. H.L.A. Hart., The Postscript to The Concept of Law, 2d. (1994), 274. 88. R. Dworkin., The Laws Empire, 143-145. 89. N. MacCormick., Legal Reasoning and Legal Theory, 197, 228. 90. R. Dworkin., Laws Empire, 266. 91. N. MacCormick., Rhetoric and the Rule of Law, 6.
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92. N. Stavropoulos., Interpretivist Theories of Law, 123. 93. R. Dworkin., Laws Empire, 266, 350-354. 94. N. MacCormick., Institutions of Law, 258-261 95. N. MacCormick., Rhetoric and the Rule of Law, 122. 96. N. MacCormick., Rhetoric and the Rule of Law, 278-279. 97. N. MacCormick., Legal Reasoning and Legal Theory, 204. 98. N. MacCormick., Reconstruction after Deconstruction: A Response, to CLS, 547-551. 99. N. MacCormick., Rhetoric and the Rule of Law, 139. 100. N. MacCormick., Rhetoric and the Rule of Law, 28. 101. N. MacCormick., Rhetoric and the Rule of Law, 201. 102. N. MacCormick., Reconstruction after Deconstruction: A Response, to CLS, 547-551. Quoted from Claudio Michelon, MacCormicks Institutionalism between Theoretical and Practical Reason, Online retrieved from oxford journals available at www.ojls.oxfordjournals.org/content/14/1/1 on 24.05.2011. 1. 103. N. MacCormick., Rhetoric and the Rule of Law, 139. 104. N. MacCormick., Rhetoric and the Rule of Law, 28.

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CHAPTER FIVE

EVALUATION, SUMMARY AND CONCLUSION What this work has set out to identify is an aspect of MacCormicks contribution to the contemporary debate in legal theory known as legal reasoning. MacCormick states in his work, Legal Reasoning and Legal Theory that a theory of legal reasoning requires and is required by a theory of law. And that any account of legal reasoning makes presuppositions about the nature of law, which means that theories about the nature of law can be tested out in terms of their implications in relation to legal reasoning.1 To this end, it becomes evident, therefore, that this aspect of MacCormicks contribution to the contemporary debate in legal theory gives sufficient information to understanding his major contributions to legal theory generally and legal reasoning particularly. One might wish to know the centre of this controversy that is associated with the contemporary debate in legal theory. Legal positivism, at least that form of positivist theory ascribed to H. L. A. Hart by Ronald Dworkin, claims that law is characteristically created and posited by the authority of the society who provides its sole source of validity. How MacCormick understands and tackles this issue is our concern here. It is not simple to restate clearly MacCormicks position on legal positivism because it has developed, not without uncertainties and tensions, through different phases, down to a position that at least in his opinion is not clearly identifiable either as legal positivist or as legal naturalist. In his work, Legal Reasoning and Legal Theory, MacCormick expresses a clear-cut position that law is after all not value-free. MacCormick is of the view that there is nothing antipositivistic about saying that law is not value free. He thinks that the point of being a positivist is not to deny obvious truths of that sort. It is his contention that the point is rather in the assertion that one does not have in any sense to share in or endorse these values wholly or in part in order to know that the law exists, or what law is. This is somewhat different view about positivism as pointed out above, and different from his positivists forbearers and contemporaries.

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However, with this affirmation, MacCormick, implicitly, means not only that the law of our contemporary legal organizations incorporates values that are contained in legal statements incorporating principles, but also that the acceptance of the content of such principles, expressed by the members of those organizations or at least by some of them has a clear ethical value, in the sense that these people express adhesion to these contents because they aim to realize states of affairs that they deem correct and / or good. For MacCormick, if human beings did not value order in life, they would not have laws at all. Law exists because law embodies not merely a form of social order, but that form of order which is specifically valued by those who have control of the legislative, executive and adjudicative processes of law. There are moral values which enter into our legal systems, precisely because inside them there are principles serving to realize these moral values. He writes: Law certainly embodies values and these values are characteristically expressed in statements of principles of a given legal system. But when we say that law embodies values we are talking metaphorically. What does it mean? Values are only embodied in law in the sense that and to the extent that human beings approve of the laws they have because of the states of affairs they are supposed to secure, being states of affairs which are on some ground deemed just or otherwise good. 2 MacCormick reaffirms his position further in his work H. L.A. Hart and Institutional Theory of Law when he admits that law is a product of social practices and that all laws owe their origin and existence to human practice and decision concerned with the government of a society, and that they have no necessary correlation with the precepts of an ideal morality. However, in An Institutional Theory of Law, MacCormick specifies his thesis on legal positivism, whereby he offers a minimal definition of legal positivism, which characterizes this tradition of scholarship; minimally as insisting on the genuine distinction between description of a legal system as it is and normative evaluation of the law which is thus described3. He contends that the existence of a law is one thing, its merits or demerits another. The existence of law does not depend on it satisfying a universal moral value but depends upon its being established through the decisions of human beings in society. Laws, like other social institutions, are fully intelligible only by reference to the ends or values they ought to realize, and thus by reference to the intentions that those who participate in making or implementing them must at least purport to have. It is evident, at this juncture, that the canonical presentation of positivism available in the late 1960s and early 1970s did not offer an articulate account of legal reasoning that
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would be both descriptively accurate (in relation to what legal practitioners actually do) and compatible with epistemic positivism. If legal positivism is an appropriate explanation of a social practice and the practice is a practice that necessarily involves courts and legislatures (i.e. institutions directly connected to secondary rules), it follows that not paying attention to the actual practices of reasoning in court might make ones explanation, at best, incomplete, but potentially wrong. That is precisely the kind of challenge raised by Dworkin and others. If one pays appropriate attention to how cases are argued (i.e. how the law is interpreted in the court) there is much more at stake than simply the union of primary and secondary rules as argued by H.L.A. Hart. Other kinds of arguments that try to make sense of the system as a coherent whole must be taken into consideration. It is at this juncture that MacCormicks contribution will be completely appreciated. MacCormick did not over look the relevance of giving a legal answer to a question that both Hart and Kelsen relegated to the domain of non-legal (i.e. how judges decide hard cases?). The solution of those cases, he argues, is part of legal practice and, as a consequence, no theory of law should get away without explaining it properly. MacCormick insists that legal reasoning is about providing an objective justification for action. Pointing out that there are many argumentative strategies that might work as justifications such as the deductive method, he goes further to identify the limitations of deductive reasoning when applied to legal contexts. For MacCormick, both legal theory and practical reason must be based in a general theory of practical reasoning. It is on this ground that MacCormick considered himself to be a post-positivist. This does not mean that MacCormick did not assign an ontological place for law in his description of the word. Law, he says, is an institutional normative order. As an institutional normative order which can be described as existing in the world, law gains its meaning from a general theory of practical reason. This is the basis of the second-order justification which he presents as a way out of the limitation of the deductive reasoning. First order justifications are effectively the syllogistic inference that makes the backbone of legal arguments connecting some universal premise about law with some particular premise about facts. A second order justification is a justification of the premises used in the syllogism(s) and that is not itself simply another syllogism. It might need inductive or analogical forms of argument (as it happens in arguments based on coherence), or it might take the form of a test of unversalisality, which itself might be conceived in many different ways which are not reducible to a syllogism or it might combine different kinds of
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arguments, and so on. MacCormicks effort in attempting to present a theory of legal reasoning based on a new conception of positivism is worthy of appreciation. A lot of problems amounting to criticisms have been generated by MacCormicks approach to legal theory generally and legal reasoning particularly. These criticisms help to put MacCormick in a perspective. Vittorio Villa has pointed out some of these problems in his criticisms of MacCormicks legal position.4 Villa, at the outset, criticises MacCormick on the ground that MacCormick fails to make a clear distinction between the level of concept and the level of conceptions, and therefore, does not show precise awareness of what remains stable in legal positivism and what is subject to change. Secondly, he accuses MacCormick of failing to make a distinction between ontological level of definition of legal positivism from a methodological level; for MacCormick has stated that law has its origin from social practise of a given group and also that certain moral values penetrate into law. What it means is that MacCormick misrepresents the ontology of law and the methodology of law. He was able to say precisely the source of law is. The third and last criticism which Vittorio has mapped out against MacCormick concerns the methodological level of the definition. He accuses MacCormick of failing to distinguish the conceptual thesis, crucial for each legal positivist, which consists of the distinction between describing positive law and taking a stand on it, from the thesis concerning the level of conceptions, a thesis that some, but certainly not all, positivist scholars stress, according to which cognitive discourse has to be rigorously non-evaluative in any case. Failure to recognise this distinction causes further problems for his theory. In this case too, not by chance, as soon as his trust in the non-evaluative character of the cognitive discourses of legal scholars starts to waver, his taking side with legal positivism starts to waver too. By way of conclusion, over and above these specific critical comments, I can only reaffirm that MacCormicks conception remains a fundamental turning point in contemporary analytical legal theory, or, perhaps, as one might also say, in contemporary analytical legal positivism, considering that MacCormicks position, at least from the methodological point to view, can still be placed in the field of legal positivism.

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END NOTES 1. N. MacCormick., Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), 229. 2. N. MacCormick., Legal Reasoning and Legal Theory, 234. 3. N. MacCormick., Legal Reasoning and Legal Theory, 239-240. 4. V. Villa., Neil MacCormicks Legal Positivism retrieved on line from www.http/californialawreviewjournal,com on 04.03.2011.

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