2.1 Charnock
Ross Charnock. (2012). Alternative Justifications and the Argument from Demystification in the English Law of Obligations. International Journal of Law, Language & Discourse 2(1), 72-94.
Abstract: Although legal judgments often appear complex, a dissenting judge occasionally adopts a simpler view of the case in the hope of reaching a clearer and more acceptable result. In such cases, judicial disagreement concerns alternative categorisations of the facts rather than the facts themselves and the dissenting judge may use an argument based on ‘demystification’. The different judgments are reached by taking alternative views of the law. Legal adjudication thus appears to involve a choice between different available perspectives. To the extent that the result depends on the view taken of the facts, rather than the facts themselves, legal judgments cannot be said to be true or false, though they may be insincere. Such insincerity is sometimes clearly apparent. As in other fields of public life, it may constitute the normal case. Yet, in the common law, the reasoning given, rather than the result, is fundamental to the operation of the rule of precedent. Paradoxically, on occasion, the divergence between the justification proposed and the judge’s true motivation may make a positive contribution to the development of the law.
Keywords: alternative conceptions, categorisation, constructive insincerity, demystification, legal argumentation, rhetorical simplicity
Category: Volume 2
