Gurnham, David (2004) The ethics of judicial rhetoric: the role of liberal moral principles in law. PhD thesis, University of Warwick.

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Abstract

This thesis is a study of the relationship between deontological liberal principles and consequentialism in legal rhetoric. The argument developed is that these supposedly separate bases for judgment are actually mutually defining in cases involving an apparent ethical dilemma. The content of a principle cannot be known a priori, since its interpretation gains its persuasive force from a calculation of the benefit and detriment of a potential decision. We argue that, in order to prevent the deontological authority of liberal principles from being undermined by such a mixing, consequentialist calculations are themselves made by appealing to an interpretation of principled arguments. The effect of this symbiosis of principle and consequential ism is that ethical problems are resolved in legal rhetoric by assigning conflicting parties a higher or lower status within a moral hierarchy that prioritises those that assimilate more closely to the liberal ideal of the reasonable, responsible individual. This assignation itself requires the weighing up the possible consequences of this or that interpretation of the relevant Principles and the 'facts' of the parties' moral status. The characterisation of judicial rhetoric as a narrative of what we might call moral consequential ism leads on to a deconstructive turn in the second half of the thesis. We seek to show that the relationship between principle and consequence is not simply one of binary opposition, but rather of undecidability. The implications of such a destabilisation of the line between apparently distinct concepts for political and ethical theory is recognised and addressed in the final chapters. We consider how deconstruction both poses dangers and also creates new possibilities for critique. The final move of the thesis is to consider the ethical implications of our critique of law's moral hierarchy. We argue that emphasising the undecidability of law's moral hierarchies allows for new perspectives on ethical problems.

Item Type:	Thesis or Dissertation (PhD)
Subjects:	K Law > K Law (General) P Language and Literature > P Philology. Linguistics
Library of Congress Subject Headings (LCSH):	Deontic logic, Rhetoric -- Philosophy, Law -- Philosophy, Liberalism -- Moral and ethical aspects, Political science -- Philosophy
Date:	July 2004
Institution:	University of Warwick
Theses Department:	Department of Law
Thesis Type:	PhD
Publication Status:	Unpublished
Supervisor(s)/Advisor:	Baxi, Upendra
Format of File:	pdf
Extent:	321 leaves
Language:	eng
URI:	http://wrap.warwick.ac.uk/id/eprint/1214

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