Legal Define Coherence

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. As several commentators have noted (cf. Kress 1984; marble 1992; Raz 1994a), theories of coherence, which have long influenced other areas of philosophy (see, for example, the entries on the theory of the coherence of truth and on coherent theories of epistemic justification), have recently found their way into 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 faith, 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 inherent in anything that requires them to 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). Among legal theorists interested in the role of coherence in legal argumentation, there is general agreement that the coherence in question must represent more than logical consistency between sentences (see Kress, 1984; MacCormick, 1984; marble 1992 & 2005; Alexy & Peczenik 1990) and that it is not clear in many coherence reports what this something means (cf. Kress 1984; Peczenik, 1989; Marble 1992). MacCormick 1984 considers coherence in terms of unity of principle in a legal system and argues that the coherence of a set of legal norms consists in the fact that they are linked either by the realization of one or more common values or by the realization of one or more common principles. Raz 1994a also characterises legal coherence in terms of unity of principle. In his view, the more uniform the principles underlying the decisions and judicial acts that make up the law, the more consistent the law. Legal theorists disagree on the correct characterization of many aspects of the schematic representation of the interpretive process referred to in subsections 2.2 and 2.3. Some of these disagreements are discussed here to give a more complete picture of some of the relevant issues and views on this topic.

The presentation of the role of interpretation in the explanatory memorandum therefore differs on the following points (Note. Some of the following points overlap to some extent): At this stage of the discussion, it is possible to establish other possible links between the two concepts discussed in this paper, namely interpretation and consistency. If we consider that the legal reasoning within the meaning of paragraph (b), that is, the reasoning of the content of the law to the result that judges should assume in a case pending before them, is entirely (Dworkin 1986) or mainly (Raz 1996a) interpretative, then we can reformulate some of the questions raised above about the importance to be attached to the consistency of the case-law. In interpreting the law, we should interpret it in a way that recognizes the value of consistency in judicial decisions. Thus, for example, is consistency the only desideratum that judges should focus on when interpreting the law, or is it merely a characteristic of such a successful interpretation, and is it also a necessary characteristic or, although desirable, may be superseded by competing values that judges should also try to implement when interpreting the law? Raz (1994a), who argues that consistency in legal reasoning is sometimes desirable but certainly not feasible, presents essentially the same dilemma, but seems to place the burden of proof on those who take the other horn. In other words, Raz is not asking how it could be justified for judges to depart from the existing law`s tendency to make a less coherent but morally preferable decision, but rather why judges should never deviate from the best moral solution to a case before them for reasons of consistency. The burden of proof is important because Raz seems to believe that arguments for a strong role in favour of consistency in legal reasoning are too easily adopted or too easily adopted as a standard position, perhaps because analogous reasoning is a common feature of many legal systems and appears to be characterized in coherent terms. For the facts to speak for themselves, the conclusion that consistency considerations play a particular role in legal reasoning speaks for itself.

Raz points out that reasoning by analogy is not a necessary fact of life in all legal systems, and that even if it does occur, it is still necessary to provide an explanation of the reasoning of arguments from the analogy and the links between these arguments and coherent reports of jurisprudence, and seeks to shift the burden of proof to those who commit to consistency. If judges are sometimes asked to deviate for consistency from what would otherwise be the best moral outcome of a case before them under the law, then Raz argues that we need a convincing positive argument as to why this should be so. (5) If interpretation is always something that already makes sense or if interpretation is the fundamental determinant of the meaning of linguistic expressions, for example in legal texts. Marmor 1992, 2005 & Stone 1995 deny that interpretation is the fundamental determinant of the meaning of linguistic expressions, and argue that after some reading of Wittgenstein`s remarks on observing rules (i.e., the type of reading offered by McDowell in 1984 and Baker and Hacker in 1985), it must be possible to understand meaning. let us say, a legal norm that does not require interpretation. Cornell 1992 & Fish 1989 deny this, arguing that interpretation is pervasive and that, in any case, the fundamental and inescapable determinant of meaning is “at the bottom.” At least in the minds of some legal theorists, this point is closely related to the issue of linguistic indeterminacy in law mentioned in subsection 2.1 (see, for example, Fish, 1989; Cornell, 1992). Theorists who claim that interpretation is the fundamental determinant of the meaning of linguistic expressions often argue that such an interpretation is necessary because legal norms expressed in language have no definite meaning and therefore cannot determine their own correct application; In John McDowell`s terminology, these rules cannot in themselves have a “normative scope”. (McDowell 1984 and 1992). From this point of view, according to this way of thinking, an interpretation is necessary to bridge the gap between the sluggishness of the rule of law and the situations to which it applies. For these theorists, the question then arises: how do we know that one interpretation, and not another, agrees with the rule, if the rule itself cannot determine its own correct application? As Wittgenstein notes in his remarks on compliance with the rules, it seems: “Whatever I do, it is, according to a certain interpretation, conforms to the rule, so we do.” give one interpretation after another; As if everyone satisfied us for at least a moment, until we thought of someone else behind. (Wittgenstein 1967, §198 and §201).