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Neil MacCormick, RHETORIC AND THE RULE OF LAW: A THEORY OF LEGAL REASONING Oxford: Oxford University Press (www.oup.co.uk), 2005. xvi and 287 pp. ISBN 9780198268789. £49.95.

Document Cited authorities 1 Cited in Related
Vincent
Pages343-345
Date01 May 2009
DOI10.3366/E1364980909001553
Published date01 May 2009
AuthorJoe Thomson

Sir Neil MacCormick published his book Legal Reasoning and Legal Theory in 1978. At that time the present reviewer was a young(ish) lecturer teaching private law. The book had a profound influence on my teaching and research in that subject. I found MacCormick's approach to statutory interpretation refreshing. Instead of assuming that statutory language was prima facie incomprehensible, MacCormick demonstrated that, read carefully and on the assumption of Parliamentary rationality, most statutory provisions were readily comprehensible, and if an ambiguity arose this should be resolved in such a way as to further the purpose of the legislation always provided the final interpretation remained a possible meaning of the statutory language. Thus equipped, I have guided generations of students through the hundreds of statutory provisions which make up family law and labour law. Rarely has MacCormick's – basically literal – approach failed to provide the right answer. For it is an error to assume that a literal construction of statutory language will inevitably produce a narrow result: often the contrary is the case. In my experience there is little need to embrace purposive or teleological interpretation. (What is the difference between them apart from the former having an Old French, Latin root while the latter's root is Greek?) Of course my view assumes an elementary knowledge of grammar and a pride in determining the meaning of what can sometimes be complex syntax and language: lazy, sloppy readers will remain sceptical.

In relation to the common law, MacCormick acknowledged that there was a role for deductive reasoning in the application of legal rules. In “hard” cases he maintained that judges used a form of practical reasoning. Decisions were reached using existing legal principles and therefore should cohere with the existing institutionalised legal system. “New” rules should be capable of being universalised. While consequentionalist arguments could be important, they had to be used to support decisions which were reasonable. The decision which had the most “fit” with the existing common law should be the one to be adopted. In this way legal developments would continue to be interstitial and judges could not be accused of hijacking the role of the legislator. Again in my case this approach appealed to the young lecturer. MacCormick had given us criteria by which we could criticise a decision from within the legal system itself as well as from a...

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