Janus‐Faced Coherentism and the Forgotten Role of Formal Principles

• Published date: 01 September 2021
• Author: Rodrigo Camarena González
• Date: 01 September 2021
• DOI: http://doi.org/10.1111/raju.12328

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 3 September (263–281)

Janus- Faced Coherentism and

the Forgotten Role of Formal Principles

RODRIGO CAMARENA GONZÁLEZ*

Abstract. Coherentists fail to distinguish between the individual revision of a conviction and

the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, ac-

cording to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially

ascribed norm that controls a case and is protected by the formal principles of competence,

certainty, and equality. A revision of a rule is the invalidation or modification such a judicially

ascribed norm, provided that the judge meets the burden of argumentation of formal principles.

Thus, judges can revise their convictions without changing the law.

1. Introduction

Coherentist methodologies are both conservative and revisionist. They have two

functions: to systematize beliefs so that new inferences fit with them and to revise old

beliefs in light of new inferences (Goodman 1979). John Rawls made coherence fa-

mous through his method of reflective equilibrium (RE) in moral philosophy.1 Rawls

(1971, 581) argues that individuals start with a set of beliefs or “considered judg-

ments” about the correct moral answer, but these are revisable “starting points.”

When they find conflicting judgments, they either modify the particular judgment or

revise the general principle, until they reach a state of equilibrium.

These methodologies migrated from epistemology and ethics to legal theory.

Ronald Dworkin argued that RE is “analogous” to the common law method of adju-

dication: precedents are equivalent to moral intuitions (Dworkin 1973, 511). Amalia

Amaya has recently defended a coherentist theory of legal justification whose central

tenet is to accept legal claims only if their acceptance maximizes the coherence of a

set of beliefs about what the law requires (Amaya 2015, 520).

Despite the popularity of legal coherence (see Kress 2010; Pérez Bermejo 2013),

critics have questioned a predominately revisionist conception of it. William

Edmundson (1994, 4) warns against the revisionist accounts of coherence in which

justification “is simply to be a member of the biggest possible, best- connected, self-

consistent set of legal propositions.” Similarly, Barbara Levenbook (2000, 236) objects

the coherentist theories of precedent because they are “ill- suited to the task of guid-

ing the conduct of the target population.”

1 Mikhail (2011) argues that RE is not a method but a state of affairs.

* Most sincere thanks to Amalia Amaya, Carlos Bernal, Carlos Montemayor, and Pablo Rapetti

for very constructive suggestions. I am also indebted to an anonymous referee for Ratio Juris.

Rodrigo Camarena González

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Ratio Juris, Vol. 34, No. 3© (2021) John Wiley & Sons Ltd.

However, a predominately conservative understanding of coherence is also

inadequate. Judges do not always treat legal sources as static propositions that

guide their behavior and can only be revised by formal amendment. This con-

ception would ignore the role of judicial interpretation in revising the law. Can

coherentists give an account of adjudication that is neither predominantly con-

servative nor revisionist? How can judges adopt a coherentist understanding of

adjudication without confusing a revision of their personal beliefs of the law with

the law itself?

While Dworkin and Amaya have identified constraints on the revisionist

power of judges, they do not clearly distinguish between the individual revision

conviction and the intersubjective revision of a rule. Dworkin noted that “conser-

vative principles” count against the revision of precedents that judges consider

mistaken. Nevertheless, he confuses the revision of individual convictions with

the intersubjective judicial revision of external data. Likewise, Amaya proposes

that the principle of “data priority” grants special weight to reasons from author-

ity over beliefs of political morality. However, Amaya does not clearly distinguish

between the dynamics of personal belief and the constrained dynamism of the

revision of the law.

The aim of this article is not to provide a full account of legal coherence but only

to distinguish between the individual revision of a conviction and the intersubjec-

tive revision of a rule. A conviction is a norm that, according to an individual, ought

to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that

controls a case and is protected by the formal principles of competence, certainty,

and equality. A revision of a rule is the invalidation or modification of a norm,

provided that the court meets the burden of argumentation of formal principles.

Therefore, when a judge fails to meet the burden of argumentation, she may revise

her convictions, without changing the law. Conversely, a dissenting judge in a su-

preme court can accept that her colleagues have changed the law, without revising

her convictions.

After this introduction, the structure of this article is as follows. Section 2

assesses Dworkin’s conservative principles and Amaya’s data priority. While

Dworkin noted how conservative principles constrain the judicial revision of the

law, he did not develop the scope of such standards and assumed an individualis-

tic perspective. Amaya points out that data priority is a type of second- order belief

about how law and morality interact, but also followed an individualistic view.

Building on their contributions, Section 3 identifies the role of formal principles as

burdens of argumentation that constrain but also guide the revision of judicially

ascribed rules. Competence refers to the judicial power of invalidation. Certainty

refers to the duty of judges to consider the expectations of other interpreters when

invalidating rules. Equality refers to the power of judges to add rules because of

similarities or differences between cases. Section 4 then applies this understanding

of formal principles as burdens of argumentation. On some occasions, even apex

courts may fail to meet the burden of argumentation and thus treat previous judi-

cially ascribed norms as entrenched rules. In contrast, on other occasions, they may

succeed and invalidate or dissociate rules. Finally, the paper concludes with some

brief remarks.