Showing papers by "Neil MacCormick published in 1989"

A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification

Abstract: Introduction: the problem of the justification of legal decisions topic theory and its limits towards assessing whether contemporary methodological discussions reveal a need for a theory of rational legal argumentation. Part 1 Reflections on some theories of practical discourse: practical discourse in analytic moral philosophy - naturalism and intuitionism, emotivism, practical discourse as a rule-governed activity including Wittgenstein and Austin, Hare's theory, Toulmin's theory, Baier's theory some interim results Habermas' consensus theory of truth - Habermas' critique of the correspondence theory of truth, combining speech act theory and a theory of truth, distinguishing between action and discourse, the justification of normative statements, the logic of discourse, the ideal speech situation, critical discussion of Habermas' theory the theory of practical deliberation of the Erlangen School - the programme of the constructive method, the presupposed purpose of constructivist ethics, the principles of constructivist ethics, the critical genesis of norms Chaim Perelman's theory of argumentation - the theory of argumentation as a logical theory, argumentation as a function of audience, demonstration and argumentation, the concept of the universal audience, persuading and convincing, Perelman's analysis of the structure of argumentation, the rationality of argumentation. Part 2 Outline of a theory of general rational practical discourse: the problem of the justification of normative statements possible theories of discourse, the justification of rules of discourse the rules and forms of general practice discourse - the rationality rules, rules for allocating the burden of argument, the justification rules, the transition rules the limits of general practical discourse. Part 3 A theory of legal argumentation: legal discourse as a special case of general practical discourse the outline of a theory of legal argumentation - internal justification, external justification legal and general practical discourse.

The Ethics of Legalism

Abstract: . “Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government.