Eaten up, but not with guilt

Rhetoric and the Rule of Law
February 10, 2006

The author of this book is a distinguished professor of law at Edinburgh University. In June 1999, he was elected one of the members of the European Parliament for Scotland. Thus his theories of law, developed over many years, have been exposed, as he says, "to the rough-and-tumble world of legislative politics". What this book does is to revise the views he expressed in his previous book Legal Reasoning and Legal Theory and answer the criticisms to which it has been subjected by equally distinguished academics in published papers. A good deal of the book is taken up with detailed rebuttals of criticisms, with which the ordinary reader will only have the most marginal acquaintance.

Unhappily, a lot of the book consists of a mixture of over-intellectualised wordplay and the trite. Take the following, by way of example: "There cannot be a rule of law without rules of law"; "In several outstanding contributions to the 'new rhetoric', Chaim Perelman emphasised that argument is necessarily addressed to an audience and that persuasiveness is audience relative". In a chapter about factfinding, we read: "Zenon Bankowski has... suggested that such processes of fact determination carried out by authorised persons can be considered as 'truth-certifying procedures'. This is a valuable insight." One wonders for whom.

When it comes to describing procedural provisions, the author often resorts to statements of the obvious. He is at pains to point out that, if a statute is relied upon, it is necessary for the claimant, in order to succeed, to set out the section of the Act relied upon and its relevance, and to support the claim with relevant evidence. This is almost page one of a students' hand-out. Elsewhere, we are told that someone accused of a crime is entitled to know the facts alleged against them and how those facts constitute the crime, and to have an impartial tribunal hear their case. What must the judge do? "Justice between the parties requires the Judge to give full and fair attention to the points they have argued."

On the other hand, some of the language used will only be comprehensible to those fluent in academic-speak. What are readers to make of this passage? "The development of a fully refined moral capacity would be something that supervenes on a more unrefined attachment to rules of a heteronomous character. That in turn would no doubt belong among the conditions necessary to developing both the self-command that Smith takes to be essential to human maturity and the associated capacity for ideal spectator judgements." Or of this passage? "Ota Weinberger... is a leading authority for the view that norm-logic is a special and non-truth-functional logic.

Carlos Alchourron and Eugenio Bulygin have shown in a series of... authoritative papers that it is a serious mistake to confuse the logic of norms on the one hand with the logic of (descriptive) normative statements on the other. Only a logic of norms can establish crucial notions like that of contradiction between norms or can show the necessary relations which obtain between the obligatory and the permissible where these are conceived as normative terms, not norm describing ones."

After this, it will be a relief for the reader to come to the chapters dealing with judging by consequences (shades of the Utilitarians), interpretation, precedents and reasonableness. The tragic case of the conjoined twins reflects the dilemma of a pair of incompatible duties.

This, together with the case of Dudley and Stephens, where the cabin boy was eaten (out of necessity, it was argued), is admirably and extensively analysed in a chapter on "Judging by consequences".

There are many distinguished textbooks on interpretation, and the single chapter in this book is not sufficient to deal with all the problems. The various arguments that can be deployed are here concisely set out and merely confirm the view long held by lawyers that deciding what particular words mean is not a scientific process.

Precedents in a common-law system, such as obtains in the UK, are fundamental to our decision making, and the impact of European law, where precedents do not have quite the same status, has not seriously affected that position. The argument as to what constitutes a ratio is well reasoned and informative.

Reasonableness is a concept, well known to lawyers, over which there has been much discussion and debate. Is it a question of fact or does it require the judge to make a value judgement? Public law is only one of the areas where the concept needs to be considered, but the volume and importance of the judgements in this field have brought the argument to the fore. A chapter of fewer than 30 pages cannot, of course, do full justice to the arguments, but they are well presented and reasoned.

It is not easy to see to whom this book will appeal, other than fellow academics engaged in fierce philosophical debate about the rarefied echelons of jurisprudential semantics. Even lawyers will, I fear, find it hard going and not particularly instructive. So much scholarship for such little reward.

Sir Oliver Popplewell is a retired High Court judge and the author of Benchmark .

Rhetoric and the Rule of Law: A Theory of Legal Reasoning

Author - Neil MacCormick
Publisher - Oxford University Press
Pages - 287
Price - £40.00
ISBN - 0 19 826878 5

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