Ratio Juris. Vol. 14 No.

2 June 2001 (23343)

On ``Coherence'' and ``Law'': An Analysis of Different Models

ALDO SCHIAVELLO
Abstract. The aim of this paper is to compare different conceptions of the role of (normative) coherence in the legal field. More precisely, it aims to deepen Neil MacCormick's theory of legal reasoning, in which coherence is essentially considered an interpretative tool, and Ronald Dworkin's legal theory, in which coherence occupies a more crucial place. The main results of this paper can be summarized in two points. A) For Dworkin, coherence is not just an interpretative standard but constitutes the hard core of his theory of law. B) As a consequence of A, Dworkin's reflections on coherence (as an interpretative standard) cannot be separated from his theory of law grounded on the concept of integrity.

I. Introduction The aim of this paper is to compare different conceptions of the role of coherence in the legal field. More precisely, I will focus my attention on Neil MacCormick's thought, in which coherence is essentially considered an interpretative tool, and on Ronald Dworkin's theory of law, in which coherence occupies a more crucial place. However, the space granted to coherence in Dworkin's thought warrants some preliminary observations on coherence in general. Coherence is a recurring theme in contemporary philosophical debate. The topic of coherence is now as topical as it was before, for example, Wittgenstein's ``forms of life,'' or Kuhn's ``paradigm.'' Many reasons could be produced to explain the importance of coherence in today's philosophy; here it will suffice to introduce the most important of them (see Hanen 1983, 6792; Baum Levenbook 1984, 35574; Marmor 1992, 6184; Raz 1994, in particular 2779). First of all, from a theoretical philosophy point of view, it is important to replace a descriptivistic paradigm of knowledge,1 typical of logical
1 The word ``descriptivism'' usually indicates the epistemological conceptions that the language of knowledge should ``describe'' reality as it is. It is possible to sayusing a very well known metaphor of Richard Rortythat descriptivism considers the human mind as a mirror capable of reflecting ``Reality.'' #

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empiricism, with a holistic model, which makes evident the systematic nature of knowledge. Holism denies the possibilities of saying ``true'' or ``false'' of a single sentence and it sustains the thesis that knowledge is a global relationship between a conceptual scheme and a field of experience.2 Joseph Raz pointed out that there is a strong connection between holism and coherence; he defines holism as: ``[_] the view that everything depends on everything'' and he concludes: ``If everything depends on everything, how is one to distinguish between truths and falsehoods if not by a test of coherence?'' (Raz 1994, 278).3 Secondly, from a practical philosophy point of view, it is important to emphasize the role of John Rawls' thought, which has long represented the core of the debate on ethics, at least in the Anglo-American scenario. In particular, on the theme of coherence, Rawls' idea of ``reflective equilibrium,'' maintains that our moral intuitions should be checked by a complete moral theory. To proceed in this way permits us to adapt our moral intuitions to a coherent moral theory which could also be modified if it is not able to justify some of our main moral intuitions. The result of this process would be a situation of perfect equilibrium between moral intuitions and moral theory. Rawls emphasizes that this result is not definitive, as a period of equilibrium is succeeded by a period of instability, and so forth continuously. It is interesting that Dworkin expressly recognizes that his theory of legal interpretation and, in particular, his conception of coherence in the legal field are inspired by Rawls' idea of reflective equilibrium (Dworkin 1986, 424).4 Holism and reflective equilibriumeven if they are often named together to explain the interest in coherence in the philosophical debatedo not necessarily imply each other: It is perfectly possible to support holism in the epistemological field and to accept, for example, an extreme relativism in ethics. On the contrary, it is admissible to argue in favour of reflective equilibrium from a neo-positivistic theory of knowledge, a clear example of this being John Rawls himself.5 It is not easy to establish whether Ronald Dworkin also accepts a holistic theory of knowledge, together with the idea of reflective equilibrium. Stephen Guest defends this possibility, showing that in a very wellknown paper Dworkin utilizes the contemporary philosophy of sciencein
2 3

On ``holism,'' see Duhem 1906; Quine 1951; Quine 1960. See also Villa 1993, 203. On the other hand, ``coherence'' and ``holism'' are not exactly the same thing. Marmor (1992, 79), for example, claims: ``Holism, however, does not necessarily lead to a coherence theory. It is a negative view in the sense that it provides no answer to the question of a substitute for foundationalism, for which status a coherence theory of knowledge is only one candidate.'' 4 Guest (1992, 1479) emphasizes some differences between Rawls and Dworkin on this point. 5 Rawls (1971, 49), after explaining the role of reflective equilibrium in moral philosophy, writes: ``But there is a contrast, say, with physics. To take an extreme case, if we have an accurate account of the motions of the heavenly bodies that we do not find appealing, we cannot alter these motions to conform to a more attractive theory. It is simply good fortune that the principles of celestial mechanics have their intellectual beauty.''
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particular the idea that empirical observation is always ``theory-laden'' arguing in favour of (a weak version of) ethical objectivism (see Dworkin 1985, 16777; in particular, 16971; cf. Guest 1992, 1479). Marsha Hanen, on the contrary, argues that Dworkin and Rawls accept the same background epistemology, i.e., the neo-positivistic epistemology. In my opinion, the most considerable textual support of Hanen's opinion is Dworkin's thesis that it is wrong to regard the work of natural scientists as a kind of constructive interpretation; in fact, the scientists' aim is to give an explanation of natural data (Dworkin 1986, 4953). In this case, the truth could probably be found in the middle; however, Dworkin devotes little time to these topics and this paper does not require an in-depth analysis: It is enough to show a general picture of the philosophical reasons justifying contemporary philosophy's interest in coherence. To conclude this general premise, it is useful to remember that in the legal field the topic of coherence has always occupied a central place, probably because of the systematic nature of law.6 For example, as far back as the year 426 A.D. the Roman emperors Valentinian III and Theodosius II enacted a Constitutio ad senatum, prescribing criteria to solve divergences between the interpretations of law worked out by the most important iuris consulti. This nature of law justifies the growing interest of contemporary philosophy of science in the activity of Courts of justice as a ``paradigmatic'' example of knowledge (see Villa 1984, 21747).7 Before proceeding further, it may be useful to anticipate the theses I am going to present. Firstly, I am convinced that in Law's Empire Dworkin worked out a theory of coherence different in part from that of his previous writings. Emphasizing these differences is not a useless exegetic exercise but sheds light on some of the most important philosophical presuppositions of Ronald Dworkin's theory of law. Secondly, Dworkin's conception of coherence (I mean in particular that of Law's Empire) is quite different from the conceptionssimilar to each otherelaborated by other scholars of legal argumentation, such as Neil MacCormick, Aulis Aarnio, Aleksander Peczenik and others. Briefly, the main reason for this difference is that Dworkin, unlike MacCormick (and others), considers coherence to be ``something more'' than a mere
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A deeper analysis of these topic is in MacCormick 1978, 15294. Raz tries to distinguishwithout success in my opinionbetween ``epistemic'' coherence, which is a theory of truth linked to a constructivistic epistemology, and ``constituive'' coherence, which indicates the peculiarity of the characteristics of coherence in the legal field. In a nutshell, Raz says that the latter presents a higher degree of intersubjectivity due to the objective ``base'' of legal documents (statutes, legal precedents and so on) which is the same for everybody. Raz (1994, 289) writes: ``The base assures it [the ``theory of law,'' my note] contact with the concrete reality of the law; the coherence test provides the rationalizing element which enables us to view the law as a rational system governing the conduct of affairs in a country.'' Against this distinction see MacCormick 1978, 103.
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interpretative tool, and it is therefore important to take this fact into account when comparing these different conceptions of coherence. The first step of my argument will be to show the main characteristics of coherence as an interpretative standard. II. Main Characteristics of Coherence (on the Basis of MacCormick's Version) The subject of this paragraph is ``normative coherence,'' as it is now common to distinguish ``normative coherence'' from ``narrative coherence.''8 Narrative coherencewhich is not part of this papercomes into play when the judge has no conclusive proof to decide a case and thus has to sift all the circumstantial evidence in his hands through a probability test (see MacCormick 1984, 2459). Unfortunately, the concept of normative coherence is more complicated. It is common to distinguish the concept of coherence from that of ``bare consistency,'' which is the absence of logical contradiction. Stephen Guest writes:
Bare consistency just amounts to the absence of logical contradiction between two statements of law. Coherence must rather be consistency ``in principle,'' that is, it must express a single and comprehensive vision of justice. (Guest 1992, 39f.)

The relationship between consistency and coherence is not perceived by everybody in the same way. The majority of scholars consider consistency a (preliminary) condition of coherence.9 To explain this thesis, it is useful to recall MacCormick's famous example of a legislator using the colour of cars as a criterion to establish the speed of cars (for example, if a car is yellow, the permitted speed is 50 km/h, if it is blue, 55, and so on). In this case, it is not correct to criticize the legislator's choice on the basis of logical contradiction, for there is no logical contradiction, but it is also certain that this statute cannot be considered coherent (see MacCormick 1984, 2358). In conclusion, a statute (or a judge's decision) can be consistent without being coherent, but it cannot be coherent without being also consistent. Luc Wintgens proposes a partially different reading of the link between consistency and coherence (in particular in the legal field). In a recent interesting paper he says that while consistency requires avoiding logical contradiction between two (or more) statutes or between a statute and a legal decision, coherence on the contrary is a quality of the legal system as a whole. So it is possible to state the coherence of a legal system even if there
This distinction is due to MacCormick. See, for example, MacCormick 1984, 23549. Peczenik 1990, 297 is particularly clear on this point: ``Consistency is the most fundamental requirement for rationality, and a necessary condition of coherence.'' See also Aarnio 1987, 106ff.; Alexy and Peczenik 1990, 130; Atienza 1990, 149; Dworkin 1986, 21924; Marmor 1992, 62; Villa 1990, 433. Gianformaggio 1990, 404f., in a relatively different way, says consistency is a species of coherence.
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are some inconsistencies within it. In other words, Wintgens does not consider consistency a necessary presupposition of coherence, but a simple indication of it (see Wintgens 1993, 483519).10 In my opinion it would be a mistake to emphasize the differences between these two reconstructions of the relationship between consistency and coherence. Wintgens' aim is simply to emphasize that the theme of coherence is strictly linked with the systematic nature of law, a thesis readily accepted by almost everybody.11 However, up to now, we have known only that coherence is a different kind of standard from consistency, but that is not enough: The problem is to establish more characteristics of coherence. Firstly, in a very general way, it is possible to consider an argument coherent when it ``makes sense.'' That is, when the different parts of it harmonically link with each other. MacCormick, defining coherence in the legal field, says it is the interpretative standard requiring that ``[_] the multitudinous rules of a developed legal system should `make sense' when taken together'' (MacCormick 1978, 152; cf. also MacCormick 1984, 238).12 In short, I think it is correct to define coherence, in the first place, with regard to ``fittingness.'' So, according to MacCormick, there is coherence when statutes are enacted by the legislator taking into account the values and the general principles of the law and also in the case of judges interpreting these statutes ex post in the light of the same principles. While the consistency of an argument is easy to check (it is sufficient to verify the existence of logical contradictions), in the case of coherence there are more problems. Coherence is a matter of degree: Between the most coherent and the most incoherent arguments there is a whole spectrum of other possibilities. The real difficulty that lies behind these characteristics of coherence is that there are no definitive rules to say that one argument is more coherent than another. For example, if many writers write the last chapter of a ``chain novel'' different readers could make different choices about which conclusion best fits the previous part of the novel. There are two more characteristics of MacCormick's conception of coherence that should be taken into account. Firstly, MacCormick considers coherence to be a formal (or, better, neutral) standard.13 Coherence does not concern the ``goodness'' of the principles with which statutes and the judges' decisions have to fit. In other words, coherence is a valid criterion of justification either in a wicked legal system or in a well-founded one. To sum up, from the point of view of the standard of coherence it does not matter if the general principle of a legal system is the ``equality of all
10 11 12

A rather similar thesis is also in Pintore 1996, 157. On the systematic nature of law, see the previous paragraph. Alexy and Peczenik (1990, 131) write: ``According to Neil MacCormick's conception of normative coherence in law, some principles support a number of legal rules, and thus make them coherent.'' 13 On the same wavelength is Aarnio 1983, 17780.
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citizens'' or the ``superiority of Aryans'': Coherence is not a qualified standard for estimating the goodness of values. Secondly, coherence is not a definitive justification of reasoning. In many situationsin the case of judicial hard cases for exampletwo or more solutions may be (more or less) equally coherent. MacCormick believes that judges, at the end of their work, decide hard cases on the basis of what he calls, using Hume's words, ``legal passions.'' At this point, it is only possible to distinguish between good and bad legal passions, not to say which legal passion is the best.14 From this standpoint, MacCormick's conception of coherence shows some analogies with the ``underdetermination thesis'' which has been worked out by contemporary philosophy of science (see Quine 1960, chaps. 1 and 2). According to this theory there are an indefinite number of theories (at least in principle) that can explain the facts (more or less) adequately and, for this reason, the choice of one of these theories, even if it is not as free as Paul Feyerabend would wish, is a matter of the scientist's taste or, rather, the discretional evaluation of the scientific community. Before analysing Dworkin's conception of coherence it is important to remember that not everybody assigns coherence a major role in the legal field. Apart from the radical thesis of the ``Critical Legal Studies Movement,'' many scholars propose a conception of coherence that is plainly alternative to that of MacCormick (cf., among others, Baum Levenbook 1984, 35574; Marmor 1992; Wintgens 1993, 483519; Raz 1994, 277325). Joseph Raz, to give just one example, criticizes a ``global'' conception of coherence and proposes a ``local'' one. He believes it is a mistake to imagine a legal system as being built on few very general principles: It is an idealization or, to put it another way, a strategy for dissimulating the tension between the principles of a legal system. Nevertheless, Raz recognizes that coherence could be an important interpretative standard for single parts of the law, where it is easier to find convergent principles. Raz's thesis can be read in two different ways. In a weak sense, Raz is saying that it is easier to interpret in a coherent way a small part of a legal system (for example, the ``law of contract'') than the legal system as a whole. But this is obvious and no one (I submit) denies it. For example, it is surely easier for a writer to achieve coherence in a single chapter than in a whole novel. In a strong senseand I believe this is the true meaning of Raz's statementRaz is showing a sceptical attitude to the role of the general principles of law (and in general of legal reasoning) as a guide to the work
MacCormick writes: ``[_] We have now reached a point which in any hierarchically arranged system of reasons for reasons must be the last stage of deliberation. Whether we consider such final choices to rest upon considered preferences or moral intuitions, we have come to that which is pre-rational or extra-rational rather than a deliverance of practical (rational) discourse itself'' (MacCormick and Weinberger 1986, 204f.).
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of legislators and judges. This is a wide topic that goes beyond the scope of this paper, so it is enough to give a general overview. III. Dworkin's Conception of Coherence before Law's Empire There are no major differences between Dworkin's first conception of coherence and that of MacCormick (see, for example, Villa 1990).15 Also in Dworkin's view coherence is not a conclusive criterion of legal justification: When two or more pieces of reasoning are coherent at the same level, it is necessary to appeal to a ``substantive political theory'' (or, in MacCormick's words, to ``legal passions''). For example, in A Matter of Principle Dworkin clearly writes:
Just as two readings of a poem may each find sufficient support in the text to show its unity and coherence, two principles may each find enough support in the various decisions to satisfy any plausible theory of fit. In that case substantive political theory (like substantive considerations of artistic merit) will play a decisive role. (Dworkin 1985, 161)

There are more problems concerning the characteristic of the neutral nature of coherence. My thesis is that Dworkin, before Law's Empire, albeit implicitly, refused to regard coherence as a neutral standard. I believe that Dworkin considers coherence can be used as a standard of legal reasoning only when the law respects some (at least minimal) criteria of justice. If the interpreter does not accept the values of a legal system, he cannot develop any ``interpretative attitude'' towards the law. For example, a South African judge some years ago, with a low opinion of apartheid, could hardly have said, especially in a hard case, that one (or more) decision(s) fits better than others the general principles of South African law. More probably, the judge in question would have tried to weigh the unjust principles with other (more just) principles, to reduce the injustice of his decision.16 In a nutshell, the question regards the possibility of fitting rules with unjust principles; I think that Dworkin does not believe this is possible. It could be objected that I am confusing two different problems, the theoretical problem of identifying the characteristics of coherence and the
15 Alexy and Peczenik 1990, 131, on the contrary, underline: ``[_] Dworkin's theory seems to be more general. He compares a lawyer with a novelist, participating in writing a `chain novel' seriatim. Each novelist, and each lawyer, aims to make his addition fit not only general principles but all the material he has been given, the predictions of what his successors will want or be able to add to it, and his substantive value judgements.'' 16 Dyzenhaus 1991, 26f., a propos of Dworkin's theory of law, underlines: ``When a statute is a datum that cannot without difficulty be accounted for in this principled fashion, it is, Dworkin says, a `mistake'. A mistaken statute will be confined to its `specific authority' which has the effect that it will be confined to as narrow a class of situations as possible. Further, it will not figure in a decision about the soundest theory of law in cases not directly affected by the statute because it lacks the principled basis required to figure in such a decision. The statute has no `gravitational force'. '' #

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ethical problem of the opportunity of using the standard of coherence when the principles of a legal system are wicked. In other words: Why could not a South African judge against apartheidfrom a theoretical point of view take the decision that best fits with the principles of that legal system? To use a very well-known Kelsenian example, even an anarchist could (from a theoretical point of view) teach law. In reality, I totally agree with this objection, and it would thus be better to turn to Dworkin who disregards some of the most important theoretical knots in his hermeneutic approach to law. IV. Dworkin's Conception of Coherence in Law's Empire In Law's Empire Dworkin strives to harmonize his conception of coherence with an organic theory of law. Here, the thesis that coherence is not a definitive standard of justification is also no longer accepted. Alexy and Peczenick correctly note that, for Dworkin, ``coherence'' is synonymous with ``integrity'' and clearly integrity is the ultimate criterion of legal reasoning (see Alexy and Peczenik 1990, 131). Usually, the word ``integrity'' is indicative of a quality of the individual; more precisely, it is correct to say that integrity is a moral value concerning individuals.17 First of all, to be integral, a person has to base his life on a set of principles and values which are not contradictory. Secondly, integrity also means correspondence between principles and actions. Finally, integrity requires that the right thing be done for the right reason: For example, if someone tells the truth in court not for honesty's sake but for vanity, he cannot be considered a person of integrity. In short, integrity is a moral principle which is difficult to evaluate; Lynne McFall explains this complexity very well:
If integrity is a moral virtue, then it is a special sort of virtue. One cannot be solely concerned with one's own integrity, or there would be no object for one's concern. Thus integrity seems to be a higher-order virtue. To have moral integrity, then, it is natural to suppose that one must have some lower-order moral commitments; that moral integrity adds a moral requirement to personal integrity. (McFall 1987, 14)

It is correct to say that to predicate the integrity of a person means to evaluate the coherence between his life and his declared values. Dworkin, transferring this value from the individual to the community, says:
Integrity demands that the public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation. (Dworkin 1986, 219)
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For a deeper study of this theme see McFall 1987.

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He thus adapts this value to the legal system by saying that it is not possible to thoroughly understand the law of a community without taking into account its fundamental principles; in other words, community becomes personified.18 Briefly, Dworkin says that judges (but also legislators, legal theorists and common citizens) have to regard the legal system as an integral person and this meansaccording to his well-known theory of legal interpretationthat they have to take the decisions (in particular in hard cases) that put the fundamental principles of a legal system ``in the best light.'' In Law's Empire, the impossibility of developing an interpretative attitude when the principles of the law are against the values of the community is clearly affirmed by Dworkin, even if he still avoids looking for reasons backing this thesis.19 As I anticipated at the beginning of this paragraph, Dworkin now considers coherence (integrity) the final justification of the interpretative task. On the contrary, in A Matter of Principle Dworkin maintained that when more than one possibility appears equally coherent, the interpreter's choice depends upon his substantive political theory. But why did he change his mind? The reason is clearly that in Law's Empire Dworkin explicitly affirms that it is not possible ``to describe'' the law of a community, leaving aside any political evaluations. This means that the substantive political theory of the interpreter comes into play at the very beginning of the interpretative activity. In other words, Dworkin says that it is not possible to fit rules with the principles of the legal system without working out a political theory which explains or justifies those principles. For example, how can a judge claim that one decision fits better than others with the principle of equality without a previous elaboration of a conception of equality? To sum up, before Law's Empire, Dworkin seems to support the thesis that substantive political theory applies only when the work of coherence is already finished. After Law's Empire, he clearly states that to appraise the integrity of a judicial decision (or of a statute) through the principles of a legal system it is necessary to have already worked out a political theory. This means that coherence must be considered the ultimate standard of legal reasoning.
It is useful to recall that Dworkin distinguishes three different kind of communities. a) The de facto model of community is a fortuitous association of persons, each one of them having personal interests. The other people are important only to obtain one's own goals. We could call it community a la Hobbes. b) The rule-book model identifies a community in which the members assume a general obligation to accept some rules. We could call it community a la Hart. c) Finally, there is the community of principle, where the acceptance of the rules is clearly supported by the consent of a set of (coherent) principles. This is the model of community preferred by Dworkin. See Dworkin 1986, 20815. See also Calsamiglia 1992, 164. 19 Dworkin 1986, 102 clearly writes: ``Interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong. Unless these theories are deeply skeptical, they will treat that legal system as a flourishing example of law, one that calls for and rewards the interpretive attitude.''
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242 V. Conclusion

Aldo Schiavello

The main results of this paper can be summarized in two points. The first point is the thesis that for Dworkinunlike MacCormick and other legal theoristscoherence is not just an interpretative standard but constitutes in a sense the hard core of his theory of law. The second point is the awareness of the impossibility of separating Dworkin's reflections on coherence (as an interpretative standard) from his theory of law grounded on the concept of integrity. At the beginning of Law's Empire Dworkin writes:
[_] law is a social phenomenon. But its complexity, function, and consequence all depend on one special feature of its structure. Legal practice, unlike many other social phenomena, is argumentative. (Dworkin 1986, 13)

The nature of the law also affects cognitive activity: When someone gives an interpretation of law, he simultaneously modifies (and, from his point of view, improves) the object of his inquiry. In short, the interpretation of law is to a certain extent a ``constructive'' activity. Within a perspective like this, coherence performs different tasks: It could be useful to concentrate on the work of coherence in the solution of hard cases. First of all, coherence enables us to distinguish the solutions that are admissible in legal practice from those that are not admissible. Secondly, the ``right answer'' can be reached by coherence. The evident problem of a pervasive conception of coherence like Dworkin's is the impossibility of combining these two tasks: Either coherence allows a reduction of the possible options or it enables us to find the right answer. Tertium non datur. A better way of solving this contradiction would be to distinguish between coherence (as an interpretative standard a la MacCormick) and integrity. Dworkin chooses to avoid this distinction, perhaps because he is unwilling to concede that the identification of law is a different activity from that of interpreting it in the best light. The consequence of this choice is that coherence occupies the centre of Dworkin's legal theory in an incoherent way. University of Palermo Department of Politics, Law and Society ``Gaetano Mosca'' Piazza Bologni 8 I90134 Palermo Italy

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