Legal Coherence Meaning

Another characterization of the type of consistency to be sought in legal reasoning can be found in Ronald Dworkin`s book. Many authors consider Dworkin`s presentation of integrity in jurisprudence as an example of a consistency calculation. (See Hurley 1989 & 1990; Marmor 1992 & 2005. Kress 1984, although he wrote before Dworkin fully developed his account of law as integrity, Dworkin also considers it a coherent account of case law. Raz 1994 refutes the idea that Dworkin`s representation of law should be understood as an account of consistency.) From this perspective, judges should seek to recognize the value of consistency in judicial decisions by interpreting the law as “speaking with one voice,” that is, they should identify legal rights and obligations on the basis that they were all created by a single author, the community personified. There are, therefore, three things (at least there may be others) that legal theorists might understand by legal reasoning: (a) reasoning for establishing the existing content of the law on a particular issue, (b) reasoning from the existing content of the law to the decision that a court should make in a case concerning that question pending before it, and (c) reasoning for the decision a court should make in a case, as a whole. 61. See Hall, Richard J. & Johnson, Charles R., The Epistemic Duty to Seek More Evidence, 35 am. Phil.

Q. 129 (1998)Google Scholar. Basically, the obligation to seek more evidence requires investigators to also look for second-rate evidence, that is, evidence of the validity of their own evidence. On the epistemic significance of second-order evidence, see Christensen, D., Higher-Order Evidence, 81 Phil. & Phenomenological Res. 185 (2010)CrossRefGoogle Scholar; and Feldman, Richard, Respecting the Evidence, 19 Phil. 95 (2005)CrossRefGoogle Scholar. It is also important to note that, at least in the context of legal facts, questions of sufficiency of first- and second-order evidence are not only epistemological, but also include an important moral and political component. See Alex Stein, Foundations of Evidence Law (2005), pp. 118-133. As several commentators have noted (cf. Kress 1984; marble 1992; Raz 1994a), have theories of coherence that have long influenced other areas of philosophy (see for example: entries on the theory of the coherence of truth and on coherent theories of epistemic justification), more recently have found their place in the philosophy of law (for a general overview of theories of coherence in law, which also considers them in the context of theories of coherence of truth, justified belief, ethics and justice, cf.

Kress 1996). Although this migration is due in part to the frequent influence of the general philosophical climate on the intellectual meteorological systems of jurisprudential theorization, it is also useful to ask whether there is something in the nature of the law that makes it particularly ripe for explanation through coherence relationships. For example, commentators who view Ronald Dworkin`s legal theory as integrity as a representation of coherence seem to answer this question in the affirmative (see, for example, Kress, 1984; Hurley, 1989): Consistency in the sense that the law is interpreted with one voice, as integrity requires, is a value that should have particular significance in the legal field, in terms of the role it should play in guiding judges seeking to interpret the law correctly. It was also found that features of the law such as the doctrine of precedent, arguments drawn from analogy and the requirement that similar cases be treated on an equal footing seemed particularly appropriate to be informed by some kind of statement of consistency. (See Kress 1984. Raz 1994a refers here to temptation, but argues that arguments based on analogy or the requirement that similar cases be treated in the same way are not intrinsic to require that they be understood in the sense of a coherent presentation of the case-law. On the role of analogy arguments in legal argumentation in general, see Weinreb 2005 and precedent and analogy in the legal explanatory memorandum.) Moreover, the idea of consistency as a particular virtue of interpretation in legal argumentation plays an important role in the work of several important continental legal philosophers (see, for example, Peczenik 1989; Alexy, 1989; Aarnio, 1987; Alexy and Peczenik 1990). 12. Thagard has maintained the principles of explanatory coherence since their original formulation in Thagard, Paul, Explanatory Coherence, 12 Behav. 479 (1989)Google Scholar.

I present them here as Thagard gives them in Thagard, Coherence, op. cit. Cit. note 11, p. 43. 10. It is important to clarify that I would like to include in the category “investigator” all legal representatives involved in the legal fact-finding process, and not exclusively those responsible for establishing the facts in judicial proceedings. 8. For a suggestion on how to accommodate the role of emotions in legal reasoning as part of a coherent approach to probative reasoning in law, see Paul Thagard, Hot Thought: Mechanisms and Applications of Emotional Cognition (2006), pp. 135-156.

The fact that consistent approaches to evidence-based arguments in law can easily be modified to accommodate emotions does not mean that the treatment of emotions by the law itself is consistent. For an argument that contradictory notions of emotion are at work in (criminal) law, see Kahan, Dan M. & Nussbaum, Martha C., Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269 (1996)CrossRefGoogle Scholar. Joseph Raz is a legal theorist who follows precisely this approach and therefore considers the interpretation of legal argumentation as a “bridge of the gap” between the identification of existing law and the development and modification of the law (see Raz 1996a and 1996b). According to Raz, the fact that interpretation plays a role in both of these activities helps explain why we don`t find a two-step or clearly divided approach to legal reasoning in judicial decisions. Judges do not first deal with legal reasoning within the meaning of paragraph (a) by resorting solely to legal elements and then, after establishing what the existing law is and how far it may lead them in the resolution of this case, they then proceed to a separate stage of legal reasoning within the meaning of paragraph (b) which requires them to: View documents outside the yard to complete the work.

Because much of their reasoning is interpretative and interpretation bridges the gap between legal thought in the sense of (a) and (b). This point could help Raz defuse some of the criticisms that have been made of the legal positivist approach to legal reasoning, such as the fact that the presentation of positivism is phenomenologically inaccurate because we do not find two different stages of legal reasoning when examining cases, one to determine whether legal rules affect the problem in question. and a system in which judges effectively legislate to fill loopholes when legislation “expires” (see, for example, Dworkin 1977 and 1986). Indeed, as Raz himself notes (particularly in Raz 1996b), this “bridging the gap” approach actually seems to undermine the idea that there is a defensible distinction between legal reasoning within the meaning of paragraphs (a) and (b) and that there are gaps in the law. Interpretation seems to blur or even blur the line between the distinct legislative role and the legislative role that many jurists assign to judges, and the fact that courts always seem to be able to decide cases by interpreting the law also seems to cast doubt on the idea that the law is incomplete and that judges therefore sometimes go beyond the law in the decision-making process. To have to. Interest in the penetration of interpretation into legal reasoning and in the Janus nature of interpretation could therefore be part of the context that has led legal theorists such as Dworkin to deny that the distinction between the identification of existing law and the development and modification of law, as understood by some legal positivists, is durable or consistent.