What makes a good common law argument? Ronald Dworkin’s answer commands much respect within legal practice. To him, the correctness of a legal conclusion rests upon its capacity to fit within a narrative of normative progress that judges deliberately impose for the sake of (i) rendering overt the shared membership of discretely decided cases within a single determinate category (ii) depictive of moral attractiveness at its best. Yet, the inherent plausibility of Dworkin’s presentation of judicial reasoning has ironically resulted in the erosion of respect for the common law. If judicial narratives are imposed for aesthetic considerations, then legal conclusions must – per Kant – be mere idiosyncratic judicial desires that have the added quality of being objectively intelligible to other individuals who could nonetheless – owing to the absence of any criteria of norm correctness – justifiably disagree. If accurate, this characterization of legal decision-making would be anemic with modernity’s conviction that law is an entity inherently distinguishable from power because of the rationality – and therefore non-dogmatic nature – of its dictates. This thesis demonstrates – contra Dworkin – that judicial narratives go hand-in-hand with rationality. Judicial reasoning is thus of great importance to the aspirational goal of governance through law. As will be seen, only a constructed narrative renders possible the objective demonstrability (i) of the membership of discrete judicial decisions within the classificatory ambit of a specific norm and (ii) the legitimacy of that specific norm’s selection – from a set of countless other possibilities - via its evidential capacity to order those same discrete decisions tentatively asserted to be under its ambit into a coherent whole. Thus, because (i) the narrative is the methodological process by which a norm comes into agreement with its observed applications and (ii) truth is exactly this just-mentioned correspondence between intellect and reality, narrative construction is – quite properly – logic.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:684473 |
| Date | January 2016 |
| Creators | Chan, Adrian Baihui |
| Contributors | Kletzer, Christoph ; Murphy, Cian Christopher |
| Publisher | King's College London (University of London) |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://kclpure.kcl.ac.uk/portal/en/theses/logic-with-a-literary-twist(82ecb4c5-b015-40b8-abdd-7b235283ebe5).html |
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