The Study Of McCormick's Consequence Theory Of Legal Reasoning

Consequentialist reasoning is the most unique part of MacComick's legal reasoning theory and is the key to understand MacComick's achievement in jurisprudence.Generally speaking,consequentialist reasoning is connecting to consequentialism which is one of the three main theories of normative ethics in philosophy.Consequentialism is full of elasticity,well adapts and has powerful instinct attraction.Obviously,consequentialist reasoning can be seen as consequentialism in legal reasoning.Developments of consequentialism bring vital and crucial support to consequentialist reasoning.For example,rule consequentialism can well explain why obey rule,concepts of behavior evaluation and decision reconstruct the relation between legal reasoning and judicial judgment.But consequentialism is on a delicate position in MacCormick's system.MacCormick's consequentialist reasoning is on the basis of legal positivism which has a good tradition of utilitarianism,and consequentialism is the offspring of utilitarianism.This connection is not bring MacCormick's appreciate because he want to keep distance with utilitarianism.Far from the most powerful philosophical support,MacComick still outstandingly built a kind of consequentialist reasoning theory.MacCormick's consequentialist reasoning faces the problem of judging hard case.While keep distance with utilitarianism,MacComick try to use consequentialist reasoning answer two questions:what is a good judicial judgment and how legal reasoning contains practical reason.The original consequentialist reasoning has following defines:it use in second order justification.And use criterions like legal justice and convenience to analyze consequences of the major premise chose in second order justification of legal reasoning,then justifies that major premise and its syllogistic outcome.Besides,consistency and coherence is the limits of consequentialist reasoning,which set by the rule of law.Later in development,MacComick points out that it is juridical consequences matter in consequentialist reasoning and he solves the difficulty brings by objective/subjective practical reasoning.In the end,MacComick leaves Hart's legal positivism and Hume's skepticism,and use New Rhetoric as the main support of he's legal reasoning theory.In the final version of consequentialist reasoning,second order justification is refined by the concept of legal explanation.Acceptable borrow from New Rhetoric becomes a key support to consequentialist reasoning.Limits of consistency and coherence can breach in some special condition.And use universalizability and defeasibility as the final argument.Compare to legal pragmatism,MacComick is much more value limits set by the rule of law,because the rule of law is the primary matter of consequentialist reasoning.Back to theoretical purposes,consequentialist reasoning basically answers the question(i.e.how to judge hard case)it want to answer.Considering consequences relies finally on the discretion of judges.But in MacCormick's consequentialist reasoning,this discretion has a strong legality constraint.But MacComick fail to keep distance with utilitarianism.In fact,MacCormick's consequentialist reasoning let utilitarianism get inside legal positivism.The explanation of uncertainty and acceptable are key concepts to theoretically justify MacCormick's consequentialist reasoning.MacComick is optimistic about law certainty,he believes consequentialist reasoning will not produce uncertainty that violates the rule of law.This argument is confirmed by compare consequentialist reasoning to other judicial methods.Acceptable is a new criterion to evaluate legal reasoning.MacComick suggests using acceptable to replace formal validity and further justify consequentialist reasoning.MacCormick's acceptable borrows from New Rhetoric.And by the connection between New Rhetoric and informal logic,MacCormick's consequentialist reasoning can be evaluated by the standard of informal logic.In such standard,consequentialist reasoning is not an intact reasoning theory because it still relies on syllogism to achieve judicial outcome,which means consequentialist reasoning lack of sufficiency.But when in judging hard case,MacCormick's consequentialist reasoning is an excellent theory.Finally,in ontology,MacCormick's consequentialist reasoning shows that law is how practical reason function and law is a tool.