Vol. 16 No. 3 (March, 2006) pp.218-221

 

RHETORIC AND THE RULE OF LAW: A THEORY OF LEGAL REASONING, by Neil MacCormick.  Oxford and New York: Oxford University Press, 2005.  304pp.  Hardback.  $74.00/£40.00.  ISBN: 0-19-826878-5. 

 

Reviewed by Lief H. Carter, Department of Political Science, The Colorado College.  Email: lhcarter [at] coloradocollege.edu

 

Neil MacCormick’s 1978 LEGAL REASONING AND LEGAL THEORY established him as one of the United Kingdom’s most acute legal theorists.  In the subsequent quarter century, MacCormick has moved from his initial Hartian positivism and Humean value skepticism to the conclusion, elaborated here, that “the whole enterprise of explicating and expounding criteria and forms of good legal reasoning has to be in the context of fundamental values that we impute to legal order” (p.1).  This move, in some ways simply a tilting from H.L.A. Hart and toward Lon Fuller, concludes (as this reviewer has advocated for close to 30 years) that “some arguments are genuinely better than others” (p.2).  The book explores why, in a post-positivist/postmodern world, this can be so.  Indeed, were this not so, it is hard to figure out “what exactly it is that members of the profession [i.e., legal academics] are here to do” (p.273).

 

MacCormick now serves as the Leverhulme Personal Research Professor and Regius Professor of Public Law and the Law of Nations at the University of Edinburgh.  From this mouthful of a title alone, it should not surprise readers that this book displays all of the intellectual virtues of the Scottish Enlightenment:  a clear-eyed identification of the important questions, an Olympian ability to track each sub-question and implication to its lair, and, above all, a temperamental inability to stray from the pragmatic and the practical.  As a “legal academic,” MacCormick has participated in or consulted on a number of controversial British legal cases, but more important, he has taken “a vigorous part in electoral politics” all of his life (p.30).  Readers will probably conclude that his commitment to political action, and particularly his service from 1999 to 2004 as a Member of the European Parliament for Scotland, enhances his appreciation for law’s work in the practical world at least as much as has his “academic” career.

 

Thus, MacCormick opens the book proper with the cut-to-the-chase question of our time.  After quoting from Lord Nicholls’ oral opinion in the 2004 TERRORIST SUSPECTS case, which denied to the Crown the right to confine terror suspects indefinitely without charges or trial, MacCormick asks, “Can the Rule of Law be upheld in the face of contemporary dangers arising from terrorism and of concerns about public safety?” (p.1).  And he concludes the book:  “Erosion of the Rule of Law would not be a good way of warding off threats to civilization, but a way of yielding to them” (p.280).  His analysis along the way leaves no doubt that the Rule of Law can survive and thrive in the postmodern age. [*219]

 

The analysis along the way covers so many topics so lucidly and systematically that the thirteen chapter titles and their subtitles alone carry much of the load of a review:

1. Institutional Theory and the Lawmaker’s Perspective

2. The Rule of Law and the Arguable Character of Law

3. On the Legal Syllogism

4. Defending Deductivism

5. Universals and Particulars

6. Judging by Consequences

7. Arguing about Interpretation

8. Using Precedents

9. Being Reasonable

10. Coherence, Principles, and Analogies

11. Legal Narratives

12. Arguing Defeasibly

13. Judging Mistakenly?

 

MacCormick is too wise to try to force each of these categories into some macro theory of the meaning of law, or meaning of meaning, or of anything else.  Indeed he displays the Scot’s dry wit when he, following David Lodge’s delicious description, analogizes law to the multiple motives and mixed games that together make up an “academic conference” in order to show how Quixotic such a task is.  (MacCormick’s quoted passage, from Lodge’s SMALL WORLD begins “The modern conference resembles the pilgrimage of medieval Christendom in that it allows the participants to indulge themselves in all the pleasures and diversions of travel while appearing to be austerely bent on self improvement” (p.218).)

 

Instead, MacCormick dissects each relevant concept microscopically.  Thus “coherence” (Chapter 10), which is not mere internal consistency—many bizarre laws are internally consistent—entails normative and narrative components.  When Italy once attempted to legislate different speed limits for different makes of cars, Italian drivers could not discern a normative basis for such a distinction and ignored the speed limits (p.191).  Sherlock Holmes solves cases by insisting on fitting the facts together—that is, on narrative coherence.  Conversely, we reject the Ptolemaic configuration of the solar system because it does not explain a coherent arrangement of astronomical observations (pp.225-226).  His ninth chapter, “Being Reasonable,” does a particularly clean dissecting of the many different meanings of the concept of reasonableness in law, from the reasonable person of negligence law to the burden of persuading criminal guilt beyond a reasonable doubt to the reasonableness of a judicial decision (p.168).

 

Virtually every page rings true, from his emphasis on the importance of triadic dispute resolution (p.3) to his insistence that we know and appropriately practice the differences between reasoning as a connected set of chain links and reasoning as “mutually independent . . . supports for the conclusions, so that failure in one of them does not leave the conclusion unsupported” (p. 181), to his conclusion that multiple concurring and dissenting judicial opinions in a case, by promoting further conversations, advance the rule of law more effectively than does the clarity and finality gained by courts that speak through only one judicial voice (pp.273-276). [*220]

 

MacCormick, whose closest American counterpart is Kent Greenawalt (e.g., pp.163-168), rejects oratorical or poetic versions of the meaning of rhetoric.  “‘Rhetoric’ has a bad name among many people because of the notorious possibility that a good speaker can win an audience round with a bad case” (p.20).  He uses “rhetoric” here in its classic sense.  It is “the discipline to apply in trying to find a convincing reconciliation or equilibrium between two commonplaces in apparent mutual contradiction” (p.13).  Since it is the abundance of such apparent mutual contradictions that makes law necessary in the first place, MacCormick’s rhetoric is simply the ordinary language of competent law doing.  MacCormick’s position implicitly reconciles Stanley Fish and Ronald Dworkin.  While selecting and building on the best of Dworkin, he never mentions Fish, but both Fish and MacCormick treat rhetoric as their conceptual centerpiece.  MacCormick thus arrives at the position entailed by Fish’s analysis (a position that, in this forum, I once criticized Fish for refusing to acknowledge out of sheer competitive feistiness).  “Rather as a ticket entitles one to undertake a certain journey by train or plain, appropriate forms of argument supply warrants that entitle one to move from premises to conclusions” (p.19). 

 

This book’s spot-on wisdom and good sense will have great appeal for advanced scholars in legal theory.  Good pragmatist that he has become, MacCormick wisely avoids trying to adjudicate many of the purely academic debates he acknowledges along his path.  But this is not a book for beginning or intermediate students, particularly those trained in American political science.  This is a very U.K.-centric book, not least in its understated drolleries. (My favorite of these is his offhand reference to the common law’s “easy insouciance about the supposed gap between fact and value” (p.74).)  Nearly all of his illustrative cases come from the U.K.  Karl Popper and Chaim Perelman but not Richard Posner, and David Lodge and William Lucy but not Edward Levi, appear in the index.  (Ronald Dworkin gets three lines in the index, but Lord Diplock gets one and a half lines there.)  Of the Justices of the U.S. Supreme Court, only two, John Marshall and Holmes, make their appearance alongside dozens of Lords, ancient and modern. 

 

Specialists who digest MacCormick here will eagerly await the next book in his planned quartet on “law, state, and practical reason.”  His INSTITUTIONS OF LAW is due within the year.  MacCormick is, to be colloquial, “a class act,” and those who specialize in this material, as well as those non-specialists who simply relish observing the performances of fine minds, will find this performance very rewarding.

 

REFERENCES:

Carter, Lief, and Thomas Burke.  2005.  REASON IN LAW, 7th ed.  New York: Pearson Longman.

 

Carter, Lief.  1994.  Review of Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH, Law and Politics Book Review, Vol. 4, No. 3 pp.33-35. [*221]

 

CASE REFERENCE:

A AND OTHERS v. SECRETARY OF STATE FOR THE HOME DEPARTMENT [2004] UKHL 56 (16 December 2004).

*************************************************

© Copyright 2006 by the author, Lief H. Carter.