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language may induce one to think they do. They do not rule "in all cases, if... then ... ", but "if in normalcases ... then ... ". This

who has always believed that legal rules rule for "normal"cases,

1974: 71; see also MacCormick1995). Furthermore,MacCormick explicitly rejects in his book the move made by some authors,of explainingdefeasibility on the basis of moral disagreementabout the issue of whether or not the law should (moral "should")be applied. He thinks that in those kinds of cases what is at issue is not whetherthereare moralreasonsto breakthe law, but what the law actuallyis:

[A] positivisticdescriptionof the systemas it operatescannotanswera particular kindof questionwhich may be raisedinternallyto a legal system:the questionas it mightbe raisedfor ajudge in a hardcase: "Whyoughtwe to treateverydecision in accordancewith a rule valid by our criteriaof validity as being sufficiently justified? and that is a question which can be, and from time to time is, raised [...]. Formy partI shouldbe reluctantto treatsuch questionsas being non legal

but-not-legal(which is what Kelsen and, in effect, Hartdo) on a priori grounds seems to me unsatisfactory"(MacCormick1994, p. 63; only the fourthitalics are mine).

Toputit in thewordsused above:if rulesareunderstoodas referring to normalcases, thenthey simplycannotbe appliedwithouthaving previouslyestablishedthatthe case is normal.It is still possible to say (with Kelsen and Hart) that as a matterof law all cases are normal (or, what amountsto the same thing, that legal rules are, accordingto the law, to be appliedto all, insteadof normal,cases), but this implies a definitionalfiat that begs the question:the fiat

truein any one of the following cases: (1) p is trueandq is true;(2) p is false and q is true;(3) p is false andq is false [... S]o long asp is false, no matterwhatq is, "pimpliesq"is true;andso long as q is true,no matterwhatp is, "qis impliedby p" is true(CohenandNagel 1934, p. 127). This is because "materialimplication is the name we give to the fact that one of a pair of propositionshappensto be false or else the otherhappensto be true"(ibid. at 128). But MacCormickwants to say, I believe, that (p D q) means somethingelse, to wit, that because of p then q. MacCormickmentions this problem,and claims that "nothingturnson that"(MacCormick1994, p. 28n). I take him to be offeringan stipulationof the meaningof "D",so thatit means "if in any casep, then (becauseof p) q" (notice the important"ifin any case").

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of saying that accordingto the law legal rules are to be applied to all cases (or that accordingto the law all cases are normal), however absurdthe result might turn out to be. Only after this fiat will the decision not to apply the law because of these absurd

is reluctantto endorsethis solution, and hence he is committedto claim that, as a matterof law (and not as a matterof ideology or morals)legal rules apply to normalcases (indeed, this is the view

But if MacCormickaccepts that laws are to be understoodas referringto normal,instead of all, cases, then it is difficultto see how can he claim thatthatthe decision in Daniels was strictlyand solely deductive.Lewis J heldMrsTarbardliable "withsome regret,

because it is ratherhardon Mrs. Tarbard,who is a perfectlyinnocent person in the matter"(cit. in MacCormick1994, p. 21). He

It is easy to see why: Lewis J assumedthatin a civil liability case it is normallythe case that if the defendantis "a perfectly inno-

him or her. In other words, the "innocence"of the defendantis usually a relevantsubstantiveconsideration.Because in the court's

tion to this particularcase producedsome inappropriateness:they demandedjudgement to be passed against a "perfectlyinnocent

importantenough for the need for predictabilityto be waived.17 In other words, he took the rules as being formal enough to

cent"party,this considerationnot being strongenoughto makethe case "abnormal"This. "freshjudgement"was, for Kelsen andHart (as MacCormicksays) not requiredby the law: it was "ideological- but-not-legal".But MacCormicksensibly rejects this position as based upon a definitionalfiat that effectively begs the question.

17 It must be bornein mind thatI have legislatedabove (at n. 1) the meaning

the only one.

Hence, for MacCormickthis "freshjudgement"is legal, i.e. what the law is for the case cannotbe known before it is made. There-

fore MacCormick'ssyllogism will not be formally valid unless it is stated as a premise. This can clearly be seen when attentionis paidto MacCormick'stranslationof the court'sdecisionintological

notation:

(16)If a seller has broken a condition of a contractwhich he was requiredto fulfil, the buyeris entitledto recover damages from him equivalent to the loss directly and naturallyresultingto him from the seller's breachof the condition;

(15)In the instantcase, the sellerhas brokena conditionof the contractwhich she was requiredto fulfil;

(17).'. In the instant case, the buyer is entitled to recover damages from her equivalent to the loss directly and naturallyresultingto him from the seller's breachof the condition(MacCormick1994, pp. 31-32).18

This is translatedas (the left column is MacCormick's,while the rightone containsmy translationof MacCormick'slogical notation

back to English, accordingto his stipulationson pp. 23 and 28f, which I will use thereafter):

MacCormickis clearly correctin claiming that (17) follows from (16) and (15). But the point is that (16) is not a correct description of the law as it was at the time, and we have already seen

The objectionI am presentingnow could, however,be directedagainst any of its parts, therefore it is enough for me to quote a section of the reasoning. It is also worth noticing that though MacCormicknow believes that a judi- cial syllogism like Daniels's should be representedusing predicateratherthan propositionallogic, I have retainedMacCormick'soriginalrepresentationof it (see MacCormick1994, p. xv; MacCormick'schange of mind was promptedby White 1979).

that MacCormickelsewhere in the book (and in other writings, most notably, 1974, 1995) agrees with this. If we correct(16) by introducingthe idea of "normalcases",we would get

(16') In normalcases, if y, thenz;

(15)In the instantcase, y;

(17)Thereforein the instantcase, z.

And this is not a valid deductive argument:to be one it needs a furtherpremise:

(18)The instantcase is a normalcase

MacCormick'spreferredoption (that legal rules establish what is

to be the case) makes this even more "presumptively" problem

noticeable.Forconsider:

(16") If y, thenpresumptivelyz;

(15)In the instantcase, y;

(17)Thereforein the instantcase, z.

Again, (17) does not follow. Whatdoes follow is

(17") Thereforein the instantcase, presumptivelyz.

But (17")does not, of course,justify a legal decision.It does not tell anybodywhatthe law is for the instantcase: it only stateswhatthe

law is. "presumptively"

WhatMacCormickcalls "thepragmaticsof law" (1994, p. xiii; 1995) wouldnot be of muchuse here."Arulethatends with 'unless

...' is still a rule",of course, but it cannot be applied unless the exceptionalcircumstanceis not present.Therulemightbe suchthat

in this case the justificationwould, from a logical point of view, be incomplete(i.e. invalid)if this circumstanceis not asserted.For

consider,

Again, (17"')fails to follow. For the argumentto be formallyvalid,

apremiselike the following is needed:

(19)w has not been proven (or: "the court has not been satisfiedof w").

Following Hart, we have already seen that "w" here stands for

applicationof the rule to the particularcase is importantenough

fore, (19) is neither a rule of law nor a statementof fact, but an evaluativejudgement:"in this case the resultofferedby the rule is

words, even in as clear a case as Daniels and even assumingthat the court has the obligation to apply the law, no decision can be reachedin a syllogistic mannerusing only rules of law and statements of fact as premisses.The fact thatthe absenceof w need not

be argued,importantas it is from a pragmaticpoint of view (no externaljustificationis needed to regardit as absent)is immaterial froma logical pointof view.19

In short, the only way in which MacCormick'sclaim could succeed is assuming the definitionalfiat he (rightly,in my view) rejectsin chapter3.

19 Cf. MacCormick1994, p. 29, where MacCormickrightly points out that to the premisses statedby Lewis J a furtherone should be added,one "which is so triviallyobvious that its omission from the express statementsof Lewis J is scarcely surprising- namely that the transactiondescribedin (i) above was intendedby each of thepartiesto be a purchaseby Mr.D. FromMrs.T. anda sale by herto him".Maybethe premisethatstatesthe normalityof the instantcase (or thatthe presumptionin favourof the solutionofferedby the rule accordingto its meaningis not defeatedin the instantcase) is equally triviallyobvious in many

it mightvery well meanthatthe courtis justifiedin not statingit.

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Now, it couldbe arguedthatI havemissedthe point,thatthe fact

of the presuppositions(and it thus constitutesa limit) of deductive justification.In Legal Reasoning and Legal Theory,MacCormick

every judge has in virtue of his office a duty to apply each and every one of those ruleswhich are"rulesof law"wheneverit is relevantandapplicableto any case broughtbefore him. And thatformulationreveals a second presupposition,

withoutwhichtheterm wouldlackidentifiablereference:thatit is possible "duty"

for the judge to identify all those rules which are "rulesof law" (MacCormick 1994, p. 54).

Hence, the counter-objectionwould continue, if it is doubted whetherthe rule shouldbe appliedto this particularcase, then we are going beyond one of the limits of deductivereasoning,while MacCormick'sthesis was meant for those cases in which those

presuppositionsare satisfied.But this cannot be an answerto my objectionto MacCormick'sclaim,sinceI amassumingthatthecourt has to applythe law;whatI amcontestingis thatin findingwhatthe law is for the case, the court will necessarilyhave to assume that the case is "normal"if rules like those in Daniels areto be applied as they were in that case. This, again, could be used to defend MacCormick'sposition only if one were to adoptthe solutionthat MacCormickis reluctantto adopt,i.e. if one were to claim thatthe rule appliesto all cases as a matterof law, howeverjustified(from an "ideological-but-not-legal"point of view) the courtmightbe in

not applyingit to the particularcase. Only given that assumption MacCormickcould say thatthe process of findinga solutionis (or can in some cases be) deductive:given the relevantrules as they were in 1938, andthe facts of Daniels as they were provenin court,

token,however,he would have to say thatgiven Pufendorf'sreport of the Bolognese law (and the facts as he told them), we could reachthe conclusionthatthe barberhadto be punishedin the same deductivemanner.Whatwe wouldaddin thelattercase wouldbe an

barberis too absurdfor the courtto do it. MacCormick'sargument cannot succeed withoutthis a priori distinctionbetween the legal

andtheideological,a distinctionthathe himselfthinksis unjustified.

Since MacCormickhimself rejects this distinctionwe need not discuss it here.20Whatinterestsme here is to point out the incom- patibilityof MacCormick'slegal theory with his account of legal

meant to be a Hartianexplanationof legal reasoning. Hence, it had to claim that some cases were in a Hartiansense clear, that is, theiroutcome could be determinedaccordingto the rules alone (that is the gist of Hart's criticism of rule-scepticism).If those cases are completely determinedby the rules, it must be possible to reconstructthejustificationof a solutionto themaccordingto the deductivemodel. Thatis to say: if it is the case that

the life of the law consists to a very largeextentin the guidanceboth of officials and privateindividualsby determinaterules which, unlike the applicationsof variablestandards,do not requirefromthema freshjudgementfromcase to case (Hart1994, p. 135)

then in those cases the court's decision can be representedin a

syllogistic way, in which the only presuppositionneeded (along with statementsof fact and of legal rules) is that the law ought to

be applied,in which no premisecontaininga "freshjudgement"is needed for the formalvalidity of the inference.This is the signifi- cance of MacCormick'sargumentin Chapter2 of LegalReasoning and Legal Theoryas an analysis of clear cases accordingto Hart. But in the following chapters,in which he undertookto build up a theory of legal reasoning,he was drivento positions which are

incompatiblewith the claims of the (legal) theory.

Thus,when discussingthe issue of clearandhardcases, he starts by noticing that "in truththere is no clear dividing line between clear cases and hardcases" (MacCormick1994, p. 197). There is a spectrumof cases, rangingfrom the hardestto the clearest, and

Reasoningand Legal Theory.His position is nowadaysdifferent:"[I] no longer accept nearly as much of his [i.e. Hart's] theses about law as I did in 1978" (1994, p. xv). My own commentsaboutLegal Reasoningand Legal Theoryare not to be seen as a criticismof MacCormick'slegal theory,since (I would claim) his later work can accommodatemost of the claims made here, but about the tension between the perspectivesof legal theory and legal reasoning,a tension thatpermeateshis argumentas originallypresentedin 1978.

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acrossthatspectrum"itcouldneverbejudgedmorethanvaguelyat

for the courtto have discretion.Now insteadof offering(like Hart

test to distinguisha clearfroma hardcase, he findsthe explanation

ences in thedominantstyle of differentperiodsin thehistoryof legal systems"(1994, p. 198). Lateron we aretold that"whenwe talkof differencesbetweenjudicial styles [... ] what we are talkingabout is or includes the degree of readinesswhich a judge manifeststo

thewordsto be overriddenis not somethingtherulecan settle;it is a

appropriateness;case cannotbe decidedbeforedecidingwhetherit will be treatedas a "normal"case (andgiven - andexcludingthis decision a deductivejustificationcould be reconstructed)or as one in which substantiveconsiderationsshow thatthe case is abnormal,

To emphasise:if what makes a case clear ratherthanhard(and vice-versa)is ajudgmentabouttherightbalancebetweentwo values (i.e. a freshjudgment),then at least some (I would say: all, but all I

both thatthe decision in clear cases can be justifiedin a syllogistic manner(using as premisses only statementsof fact and of legal rules) and thatrules applyonly to normalcases (or thatthey estab-

alreadysaw) equivocatesbetweenthetwo differentclaimsidentified above concerningwhat we could call the "deductiveelement"in

legal reasoning.

MacCormick'sargumentwas originallypresentedagainstthose who held the thesis that "legal reasoning is [n]ever strictly deductive"(1994, p. 19). We aretold thatif this denial"is intended

in the strictest sense, implying that legal reasoning is never, or cannot ever be, solely deductivein form, then the denial is mani- festly and demonstrablyfalse. It is sometimes possible to show conclusivelythat a given decision is legally justified by means of a purely deductive argument"(1994, p. 19). Later in the book, however, chapter 2 was supposed to have been directed against "thosewho deny thatdeductivelogic is relevantto thejustification of legal decisions" (1994, p. 45), and in the new forewordto the

1994 paperbackedition the argumenthas definitelychanged:now it is presentedagainst "recurrentdenials by learnedpersons that the law allows scope for deductivereasoning,or even logic at all" (1994, p. ix). In the same piece MacCormickseems to reject his own claim that"it is sometimespossible to show conclusivelythat a given decision is legally justifiedby means of a purelydeductive

tion. It is always encapsulatedin a web of anteriorand ulterior reasoningfrom principlesand values [...]" (1994, p. xiii; all the

In my opinion, the quotationsfrom the new foreword reflect MacCormick's present view of the "centrality of deductive reasoningfor legal reasoning"andthey haveto be understoodin the light of Alexy's distinctionbetween externaland internaljustifica- tion. So understood,the claim refersto the possibilityof translating a given decision in syllogistic terms as being usually the clearest andsafest way to check whetheror not the decision was fully justi- fied,whetheror not issues requiringexternaljustificationhadarisen (and if they had, whetheror not they were settled accordingto the

of the externaljustification). requirements

But in this sense chapter 2 does not answer the challenge to legal positivism it was designed to answer.If it is to provide an answer,it has to be takenas meaningthatsometimesit is possible for legal decisions to be fully justified througha syllogistic chain of reasoningthatuses only statementsof fact and of legal rules as premisses.Only in this sense the thesis would imply,if correct,the rejectionof the argumentpresentedup to now. Only in this sense could it help Hartto show that in some cases no fresh judgement is needed for courts and officials to apply the rules. But for this