Replies to Critics

• Date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12188
• Published date: 01 December 2017
• Author: Amalia Amaya

Replies to Critics

AMALIA AMAYA*

1. Del Mar on Coherence and Relational Ethics

In his comment, Del Mar objects to my interpretation of MacCormick’s theory of

coherence, and advances an alternative interpretation of this theory that differs in

two significant respects from the interpretation I defend in The Tapestry of Reason.

First, on Del Mar’s view, coherence plays a role in MacCormick’s theory broader

than the role I assign to it. Second, according to Del Mar, in MacCormick’s theory

the limits to coherentist reasoning inlaw are set not by the allegedly greater role that

MacCormick gives to consequentialist reasoning (as argued in my book), but rather

by his meta-ethical commitments, more specifically, his value pluralism, grounded

on respect for other persons. This respect for reasonable disagreement about matters

of value (among judges) is one aspect of what Del Mar calls “relational ethics,”

encompassing, in addition to relations among judges on a panel, relations between

judges and parties, present judges and judges of the past and the future, courts and

other institutions such as legislatures and executives, and judges from different legal

traditions. Del Mar claims that once we place coherence-based reasoning in the con-

text of relational ethics, we come to see that there are important reasons for limiting

the role of coherence (as MacCormick did, in Del Mar’s view) and, furthermore, for

valuing incoherence. Del Mar concludes his thought-provoking essay by raising

some questions about the role that ethics and, more specifically, relational ethics,

should have in the construction of a theory of legal reasoning and the way in which

it might constrainthe development of such a theory.

In my reply, I will not dispute Del Mar’s critique of my interpretation of

MacCormick’s views on the scope of coherentist reasoning in law and the reasons

why coherence should play a limited role in legal justification. Nor will I raise any

* I am extremely gratefulto Maksymilian Del Mar, Grant Lamond,and William Lucy for devot-

ing so much time and effort to commenting on my work. Their comments havehelped me see

my own book in a different light and have brought to the surface problems, assumptions, and

implicationsof legal coherentism and my approach to it that I had not realizedbefore, for which

Iammostgrateful.

[Correction added on 14 February 2018, after Online and Print publication in November 2017:

This article has gone through further revision after first publication. It has been edited for lan-

guage in thiscurrent online version.]

V

C2017 The Author. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (529–548)

objections to Del Mar’s alternative interpretation of MacCormick’s coherence

theory. MacCormick’s work is never ending, and we cannot but benefit from the

advancement of diverse readings of his texts. I regret that MacCormick came across

in The Tapestry of Reason mostly as an object of critique as he is a legal philosopher I

deeply admire. He has the rare quality of always casting a reasonable outlook on

things, an exceptional ability to present complex issues in a simple way, and a mas-

terful capacity to show how sophisticated philosophical questions have a bearing

on real, pressing, problems of everyday life, social life, and the life of the

law. Instead of engaging in a conversation with Maksymilian Del Mar about

MacCormick’s views on the value and limits of coherence in law, I will focus on

the broader lesson he draws about the potential relevance of relational ethics to

legal reasoning and, more specifically, to coherence-based reasoning in law.

1.1. Legal Reasoning and Relational Ethics

Maksymilian Del Mar in his reply (as well as in other texts) puts forward an impor-

tant thesis, to wit, that there is a critical relational dimension to legal argument,

which theories of legal reasoning should account for, and this makes relational

ethics highly relevant for constructing and evaluating a theory of legal reasoning.

I fully agree with Del Mar that there is an important connection between ethics

and a theory of legal reasoning. In the book, I argued for the relevance of a theory

of virtue ethics to a coherence theory of legal reasoning in that virtue constrains the

kind of coherentist reasoning that may confer justification upon legal decisions.

Ethics, of a virtue variety, is thus bound up with a theory of legal reasoning. Del

Mar’s point is about the connection between relational ethics, rather than virtue

ethics, and legal argument, but these two kinds of ethical approaches are in my

view not unrelated.

To begin with, there are some virtues the possession of which importantly con-

tributes to improving the quality of relationships that is the core preoccupation of

relational ethics. Among these virtues, a prominent subset is the virtues of commu-

nication. Del Mar emphasizes the relevance of several modes of expression and

communication that enhance the quality of relations among judges, parties and

advocates, such as expressions of doubt or the listing of alternative decisions. This

dimension of communication is indeed critical to virtuous judgment and one that

has been relatively neglected in virtue approaches to the subject. Virtuous adjudica-

tion requires the expression and communication of judgment in ways that show

proper respect to other judges, the parties, and the citizens in general and that duly

acknowledges the stakes of the decisions and the effects that such decisions have

for the parties as well as for society at large. Another subset of virtues with a direct

impact on the quality of relationships among judges, parties and advocates are the

so-called “warmth virtues” (Worthington et al. 2015, 24) such as compassion,

humility, and empathy. The possession of these virtues has an important effect

on modes of expression and communication that courts use in their judgments.

Compassionate, humble, and empathetic judges will exhibit an attitude of proper

care and respect for the well-being of others, which significantly shapes the way in

which judgment is expressed and communicated. Thus, a concern with the quality

of relationships, which lies at the core of relational ethics, is also a mark of virtuous

adjudication.

530 Amalia Amaya

V

C2017 The Author. Ratio Juris V

C2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 4