The Role and Value of Coherence in Theories of Legal Reasoning

• Author: Maksymilian Del Mar
• Published date: 01 December 2017
• Date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12180

NOTES • DISCUSSIONS • BOOK REVIEWS

The Role and Value of Coherence

in Theories of Legal Reasoning

MAKSYMILIAN DEL MAR

1

1. Introduction

Amalia Amaya’s new book, The Tapestry of Reason (Amaya 2015), is a magisterial

work: It is thoroughly multidisciplinary, elegantly written, clearly argued, and

well-structured. It is also a one-stop-shop for anyone interested in the role of coher-

ence not only in legal reasoning, but in practical reason more generally. It should

do much for the prospects of collaboration between philosophers, psychologists,

cognitive scientists, and lawyers. It calls for and deserves a wide readership.

One of the key figures in Amaya’s treatment of coherence is Neil MacCormick.

He is not the only theorist that Amaya reads in quite some detail: Aleksander Pec-

zenik and Ronald Dworkin also receive extensive treatment (Robert Alexy receives

some attention, but less than the others). But MacCormick does hold a certain pride

of place for various reasons. One of them is that he theorised about both aspects of

coherence that Amaya is interested in, namely, coherence in reasoning about law

(i.e., normative coherence) and in reasoning about fact (i.e., narrative coherence).

Further, MacCormick was a key player in the debates over coherence in legal rea-

soning in the twentieth century—his 1984 paper on coherence (MacCormick 1984)

was influential, particularly in European legal theory;

2

he was influenced by and

1

Reader in LegalTheory, Queen Mary Universityof London.

2

Indeed, Amaya’s key example of normative coherence is the case of Sweet v. Parsley [1968] 2

All ER 337 (CCA);[1970] AC 132, [1969] 1 All ER 347 (HL), whichis taken from that 1984 paper.

MacCormick, in turn, may have gotten the example from Lyndel Prott’s (1978) paper on Josef

Esser. Esser is more important in the histories of theories of legal reasoning than he is often

given credit for—this may be because he is sometimes seen more as a comparative lawyer than

a theorist (though this, of course, belies a narrow view of what theory is or can be). Esser,

together with Cha€

ım Perelman (as well as,though to a lesser extent, Julius Stone andTheodore

Viehweg), were greatly influential sources for MacCormick—e.g., in both Esser and Perelman,

he found the notion of acceptability, which was crucial for him in his understanding of

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also in turn influenced Peczenik; he translated Alexy and was one of the first theo-

rists in the Anglo-American tradition to engage with him seriously (see Alexy 1989

and MacCormick 1983a); and he had a longstanding dialogue with the views of

Dworkin.

3

All of these debates are pertinent to anyone interested in charting the

role and value of coherence in legal reasoning.

There are also more substantive reasons to engage with Amaya’s reading of Mac-

Cormick. I intend to suggest that MacCormick had a broader reading of the role

and value of coherence than Amaya ascribes to him. However, and perhaps some-

what counter-intuitively, even though I argue that role and value was broader than

Amaya suggests, I also wish to argue that its role and value nevertheless remains

limited. Its limits, however, are set less by any (allegedly greater) role he assigns to

consequential reasoning, and more by his meta-ethical commitments, in particular

his value pluralism. Keeping in mind these limits to coherence, I will, in conclud-

ing, outline some further reasons for giving coherence an important, but still mod-

est place, in an overall theory of legal reasoning.

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2. Amaya on MacCormick

It is important to see Amaya’s reading of MacCormick in the overall context of her

project—in particular, her positioning of coherence-based accounts of legal reason-

ing as “an appealing alternative to both formalising and sceptical approaches to

legal reasoning” (Amaya 2015, 1). This already elevates the stakes: If we cannot

make a coherence-based account work, then might we be stuck with either formal-

ism or scepticism? This is a stark way to put it, but it might already have us think-

ing whether any account of legal reasoning can be “based” on one possible form of

justification (whether coherence, or any other).

At the same time, something certainly rings true in Amaya’s (more historical)

claim that the “chief motivation driving the proposal of coherence theories of law”

was to offer “an alternative (and broader) view about the scope of reason in law

than the one endorsed by formal legal positivism” (ibid., 4).

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Thus, whether we

speak in terms of the weak or the strong version of coherence theory—i.e., weak

when it is seen as a necessary but not sufficient condition of legal justification, and

consequential reasoning (see MacCormick 1978a, n. 104); but also more broadly, the idea that

nonlogical reasoning is nonetheless subject to rational standards: that while there may be no

inevitabilityabout the result produced by this process,there are nonetheless good, sufficient,or

plausiblereasons that can be advanced (Prott 1978,468).

3

This is a complex storyfor another day, though I refer a little more to it below.

4

There might well be other reasons for limiting the role of coherence in accounts of legal rea-

soning—both William Lucy and Grant Lamond in their pieces for thissymposium speak of the

methodological importance of engaging with the thicket of legal reasoningin practice, with all

its messiness (aresult of both institutional pressures and human imperfections). Such a method

might suggest that there are always multiple forms of justification at play in legal reasoning.

This emphasis on multiple elements at play was very much a running theme in MacCormick’s

work on legal reasoning (see also his accountof “structured pluralism”:MacCormick 1991), and

one could argue thatthis emphasis was a direct result of his method (engaging with and ration-

ally reconstructingthe detail of many cases).

5

To this one might add the motivation to offer an alternative to the limited role for reason in

sceptical legal realism—but, historically, Amaya stresses the dissatisfaction with classical legal

positivism,and this seems persuasive,though remains to be tested.

492 Maksymilian Del Mar

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