On MacCormick’s Theory Of Legal Reasoning

Rhetoric and The Rule of Law : A Theory of Legal Reasoning is one of the most important works of Mac Cormick in his later years. Based on Institutions of Law, Mac Cormick introduced the theory and method of rhetoric to make a reinterpretation of legal methods in legal reasoning and legal theory from a new perspective.In Mac Cormick’s view, there is more than one solution to do any legal issues.Choosing a different judge rules will make different legal consequences. However, determination under the rule of law can be debated.In order to confirm the applicable law, He distinguishes between simple cases and difficult cases, and builds the argument structure of two levels:deductive reasoning and the double reasoning-In simple cases, the judgment conclusion directly comes from deductive reasoning used,but legal reasoning need to turn to double reasoning in difficult cases,as there are problems of interpretation of law,related and issues of fact to explain competitively.Therefore, must choose a method to prove a deductive reasoning is under the major premise and minor premise.This is the double reasoning what Mac Cormick pointed out.It includes: Consequentialist Argument, Consistency Argument and Coherence Argument.Besides the abstract and conclusion, the paper has five parts.The first part is an overview of Mac Cormick’s theory of legal reasoning.From Institutions of Law mentioned,the law is a special branch of rational practice with institutional fact and legal reasoning.Mac Cormick, inspired by the new rhetoric, treats the law as is arguable, reflect rhetorical feature of legal argumentation.The second part is the feacure of a special branch of rational practice with institutional fact and legal reasoning. The basic framework of legal reasoning is built under legal syllogism.However, deductive reasoning only focused on the derivation of the relationship between major premises and conclusions within the scope of formal logic.Deductive reasoning itself has limits so that it can not be directly applied to the difficult case reasoning while arguing for deductivism shows the core status of deductive reasoning in the theory of legal reasoning of Mac Cormick.The third part introduces the theory path of legal reasoning of Mac Cormick called Consequentialism that considers how to choose the best the judge rules and judicial decisions for the acceptability of the results.The fourth part introduces the standards of persuasive legal reasoning theory of Mac Cormick and the relationship between them that can provide justification for judicial decision. Consistency argument and coherence argument is the standard of legal reasoning of Mac Cormick so that describes the validity and the acceptability of the legal reasoning. Consistency Argument emphasizes that there is no conflict between the rules the judge establishes and the existing effective legal rules so that the judge must be strictly in accordance with the existing ruling to rule.The argument of Coherence focuses that any rules the judge make are not in contradiction with general principles of law system and claims that the judgment conclusion should explicitly reflect a sort of value and orientation of policy in the legal system.The fifth part is about the limitations and significance of Mac Cormick’s theory of legal reasoning. The limitation is that too much trust the judges and no more detailed analysis on the judge’s discretion, and also involves uncertainty in judge decisions. Mac Cormick’s theory of legal reasoning is of significance in constructing a theoretical framework of legal reasoning, propose a relatively definite judgment standard.Provide a viable theoretical guidance for the difficult cases.