Mr. McLeod argues that the role of rules in judicial decision-making is commonly misunderstood by both the formalists and realists. The rehabilitation of rhetoric in fields of study outside law suggests a novel and useful insight for jurisprudence: judges neither mechanically apply legal 'commands' nor exercise arbitrary, subjective preferences. They engage in a process of argumentation structured by the 'wishes' of statute and precedent, and directed towards persuasion of their anticipated audiences. Mr. McLeod offers the reasons of the Supreme Court of Canada in Hunter v. Southam Press as an example of rhetorically structured argument. The Court was required to interpret the new Canadian Charter of Rights and Freedoms section 8 which prohibits "unreasonable search or seizure". He argues that though the Court could not define 'unreasonable' with reference to any prior fixed rules, it was not compelled to exercise arbitrary and subjective preferences. The decision is best understood when analyzed in light of the Court's rhetorical obligations.
"Rules and Rhetoric."
Osgoode Hall Law Journal