Guidance and constraint: the action-guiding capacity of Neil MacCormick’s theory of legal reasoning

Abstract

In this article I explore the action-guiding capacity of MacCormick’s theory of legal reasoning. More specifically, my aim is to determine whether this theory will take us further than the so-called legal method, and, if so, whether it can give us the kind of concrete guidance we need when confronted with a hard case. Suppose a judge or an attorney or an administrator really understood and could apply this theory. Would it be of any use to him when faced with a hard case? Would it be able to guide him to a decision when the interpretive arguments conflict with one another? I argue that in many cases MacCormick’s theory can indeed give judges the kind of concrete guidance they need. The reason why MacCormick’s theory is successful in this regard is that it offers judges a reasonably firm ranking of the interpretive arguments, and that it is rather easy to understand and apply. The importance of the latter fact can hardly be exaggerated, because it means that judges will be able to apply the theory even though they may lack a deep understanding of the relevant field of substantive law.