China Social Science Review

No.4, 2021

 

Rational Limits to Discretion: A Defense of Deductivism

(Abstract)

 

Chen Wei

 

Discretion is a fundamental concept of philosophy of law and jurisprudence. Taking the language philosophy approach, Hart understood rule-based discretion as a key point. However, his concept of discretion lacks a theory of legal argumentation and so fails to refute Dworkin’s “strong discretion” critique. Carrying on Hart’s analytical positivist jurisprudence, MacCormick produced a “second-order justification” theory based on deductive reasoning and combining consequentialist, coherence and consistency arguments to construct an “ideal formal justice,” thus presenting a defense of strong discretion. However, in the course of responding to various non-deductivist challenges, he was strongly influenced by Perelman’s new rhetoric, and turned to rhetoric as an approach to the theory of legal argumentation. We strongly support MacCormick’s defense of the deductivist theory of legal argumentation, and uphold the idea that discretion should be a rational practice with deductive reasoning as its essence and non-deductive reasoning as a participant. Moreover, the legal analogy, topical and rhetorical approaches to discretion are all essentially based and purposed on deductive reasoning; they will not be able to refute deductivism as the rational limit of discretion.