Abstract
Coherence is a quality that is accorded to a scientific theory or any other collection of linguistic sentences, assertions, or propositions. The definition of coherence yet turns out to be problematic. Robert Alexy and Aleksander Peczenik define coherence in quantified terms, i.e. “… the more/longer/greater (…), the more coherent the theory”, which, however, misses the point. Yet, coherence is an inherently constructive phenomenon that cannot be captured by quantified criteria. Ronald Dworkin’s idea of law as integrity, though on the right track with its emphasis on the qualitative side of the issue, is not entirely satisfactory either, since his analysis is burdened with sky-soaringly abstract metaphors, like the chain novel metaphor, courts taken as the capitals and judges as the princes of the law’s empire, and Judge Hercules, or “a lawyer of superhuman skill, learning, patience, and acumen”, will serve as a model for the more human judges. A more analytical approach is therefore needed. The Duhem-Quine Thesis that underscores the inherently holistic and underdetermined character of a scientific theory, is extended to the domain of legal analysis and legal argumentation. Dworkin’s notion of law, in specific, is judged in light of the Duhem-Quine Thesis. A (re)definition of coherence is then given in terms of the mutual match, reciprocal support, common alignment, absence of dissonance, and/or shared congruence of a set of sentences that make up a scientific theory or other discourse formation, to the effect that they collectively make sense when inserted in, and read as part of, the same narrative structure or pattern. The narrative structure in a collection of sentences consists of a set of successive choices made in the logico-conceptual space that consists of the syntagmatic and paradigmatic dimensions of language. Syntagmatic relations are based on a sequence or combination of signs, as brought into effect in their linear succession in the flow of speech (parole). Paradigmatic relations, in turn, are based on the ever-present possibility of effecting a selection among the mutually exclusive signs, where one sign can be substituted, or replaced, by another with an equivalent or parallel value in a language taken as a momentary system of signs (langue).
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- 1.
Foucault, Les Mots et les choses; cf. also Foucault, L’Archéologie du savoir.
- 2.
Wittgenstein, Philosophical Investigations – Philosophische Untersuchungen, § 265 (p. 94/94e).
- 3.
Neurath, Philosophical Papers, p. 53. (Italics by Neurath.) Cited in Coffa, The Semantic Tradition from Kant to Carnap, p. 365. – Coffa’s book is an excellent account of the historical unfolding of modern semantics “from Kant to Carnap”, as the title of the book has it.
- 4.
Neurath, “Soziologie im Physikalismus”, p. 403 (italics by Neurath), as cited in Coffa, The Semantic Tradition from Kant to Carnap, p. 365. Cf. Quine, “Two Dogmas of Empiricism”, pp. 42–43.
- 5.
On the two notions of synchronic and diachronic coherence, cf. Peczenik, “Coherence”, p. 124.
- 6.
Peczenik, “Coherence”, p. 124.
- 7.
Peczenik, “Coherence”, pp. 124–125.
- 8.
Peczenik, On Law and Reason, p. 160; Alexy and Peczenik, “The Concept of Coherence and Its Significance for Discursive Rationality”, p. 131.
- 9.
Peczenik, On Law and Reason, pp. 160–177; Alexy and Peczenik, “The Concept of Coherence and Its Significance for Discursive Rationality”, pp. 132–143, 144–145.
- 10.
With reference to Peczenik’s points 1 and 2: an interlocking “seamless web” of a few apt reasons given in support of a certain conclusion might well be more coherent than an elaborate puzzle-work of hundreds or even thousands of wildly criss-crossing sentences, since in the latter case the internal relations between sentences are prone to become more complex and open to alternative interpretations (unless we are dealing with the fully unambiguous sentences of formal logic, artificial languages, or mathematics).
- 11.
Value-laden principles and other legal standards that satisfy Dworkin’s twin criteria of enjoying adequate institutional support and sense of approval in the legal community cannot be locked into a fixed system of legal concepts or decision-making criteria, due to the methodology of weighing and balancing the value-laden principles for the case at hand. In this, legal principles are radically different from legal rules that can be placed in such a system, as exemplified by Hans Kelsen’s and A. J. Merkl’s idea of the norm hierarchy or norm pyramid.
- 12.
Why should general concepts yield more easily into parts of a theory of coherence? In fact, the issue at hand concerns the extent of the field of application of the theory in question, with general concepts providing for a larger domain of application than individual concepts, and not the coherence of the theory.
- 13.
In other words, the semantic reference of a theory should be distinguished from its internal structure of argumentation, while it is only the latter issue that has something to do with the concept of coherence.
- 14.
Peczenik answers the critique of possibly highly coherent fairy-tales by writing: “The contact with reality is provided by the criteria of coherence. Criterion 9 [number of cases covered] thus demands that a coherence theory covers a great number of ‘data candidates’, or ‘certain statements’. Criterion 3 [strong support between statements] relates coherence to presupposed statements, which characterise a certain practice, such as legal reasoning.” Peczenik, On Law and Reason, pp. 179–181 (the citation on p. 179). – Still, the Moorean open question argument haunts the theory: is such a notion in fact equal to coherence?
- 15.
Ryle, The Concept of Mind, pp. 17–19.
- 16.
Moore, Principia Ethica, pp. 58–72. “ ‘Good’, then, if we mean by it that quality which we assert to belong to a thing, when we say that the thing is good, is incapable of any definition, in the most important sense of that word.” Moore, Principia Ethica, p. 61. On the naturalistic fallacy and its critique, Moore, Principia Ethica, p. 62 et seq.
- 17.
von Wright, The Varieties of Goodness.
- 18.
Dworkin, Law’s Empire, p. 262. – Cf. “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Dworkin, Law’s Empire, p. 255. (Italics added.)
- 19.
“… in those in hard cases… [the lawyers] make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards.” Dworkin, Taking Rights Seriously, p. 22.
- 20.
“The courts are the capitals of law’s empire, and judges are its princes, but not its seers and prophets. It falls to philosophers, if they are willing, to work out law’s ambitions for itself, the purer form of law within and beyond the law we have.” Dworkin, Law’s Empire, p. 407.
- 21.
Dworkin, “Hard Cases”, p. 105; cf. Dworkin, Law’s Empire, p. 239 et seq.
- 22.
Dworkin, Law’s Empire, p. 262. – At times, Dworkin’s style of argumentation is reminiscent of Lon L. Fuller’s sky-soaring rhetoric, with reference to the ideals of perfection in legality, legal excellence, and utopia in legality, plus the appeal to a sense of trusteeship and the pride of the craftsman on part of the legislator.
- 23.
We are thus dealing with a normative gap situation in Makkonen’s terminology, or a situation where there are two or more mutually conflicting legal rules that cannot be applied to the case at the same time.
- 24.
Cf. e.g. “Hard Cases” and “Can Rights Be Controversial?”, both reprinted in Taking Rights Seriously; “Is There Really No Right Answer in Hard Cases?”, in A Matter of Principle; and in “Appendix: A Reply to Critics”, in the second, enlarged edition of Taking Rights Seriously in 1978.
- 25.
Dworkin, “Pragmatism, Right Answers, and True Banality”, p. 365 where the author underscores the pragmatic, anti-metaphysical character of the one right answer thesis: “My thesis about right answers in hard cases is, as I have said, a very weak and commonsensical legal claim. It is a claim made within legal practice rather than at some supposedly removed, external, philosophical level. I ask whether, in the ordinary sense in which lawyers might say this, it is ever sound or correct or accurate to say, about some hard case, that the law, properly interpreted, is for the plaintiff (or for the defendant). I answer that, yes, some statements of that kind are sound or correct or accurate about some hard cases.” – Similarly in “Can Rights Be Controversial?”, p. 279: “My arguments suppose that there is often a single rights answer to complex questions of law and political morality.” (Italics added.)
- 26.
See e.g. Dworkin, Taking Rights Seriously, pp. 331–338 (“Munzer and No Right Answer”).
- 27.
“According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Dworkin, Law’s Empire, p. 225.
- 28.
Dworkin, “The Model of Rules, I”, p. 35. (Italics added.) – Cf. also Dworkin, “The Model of Rules, I”, p. 26: “All that is meant, when we say that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.”
- 29.
Dworkin, Taking Rights Seriously, p. 23: “… all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”
- 30.
“Yet we could not devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle, still less to fix its weight at a particular order of magnitude. We argue for a particular principle by grappling with a whole set shifting, developing and interacting standards (themselves principles rather than rules) bout institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedents, the relation of all these to contemporary moral practices, and hosts of other such standards. We could not bolt all of these together into a single ‘rule’, even a complex one, and if we could the result would bear little relation to Hart’s picture of a rule of recognition, which is the picture of a fairly stable master rule specifying ‘some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule …’” Dworkin, Taking Rights Seriously, pp. 40–41. (Italics added.) – “But this test of pedigree [i.e. a rule of recognition à la Hart] will not work for the Riggs and Henningsen principles. The origin of these as legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. Their continued power depends upon this sense of appropriateness being sustained.” Dworkin, Taking Rights Seriously, p. 40. (Italics added, except in the two cases Riggs and Henningsen.)
- 31.
“The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to a particular decision about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it case it contributes nothing to the decision. (…) But this is not the way the sample principles in the quotations operate. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met.” Dworkin, Taking Rights Seriously, pp. 24, 25. (Italics added.)
- 32.
“Principles have a dimension that rules do not – the dimension of weight or importance. (…) it makes sense to ask how important or how weighty [a principle] is.” Dworkin, Taking Rights Seriously, pp. 26, 27. (Italics added.)
- 33.
“Only rules dictate results, come what may. When a contrary result has been reached, the rule has been abandoned or changed. Principles do not work that way; they incline a decision one way, though not conclusively, and they survive intact when they do not prevail.” Dworkin, Taking Rights Seriously, p. 35. – Cf.: “Rather, [a legal principle] states a reason that argues in one direction, but does not necessitate a particular decision. (…) All that is meant, when we say that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.” Dworkin, Taking Rights Seriously, p. 26. (Italics added.) – Nonetheless, in Dworkin’s own classic example Riggs v. Palmer, however, the legal principles according to which no one may profit from his own wrong-doing was allowed to supersede the perfectly valid legal rule according to which the last will of the deceased person is to be respected.
- 34.
“When principles intersect (the policy of protecting automobile consumers intersecting with principles of freedom of contract, for example [in Henningsen v. Bloomfield Motors, Inc.]), one who must resolve the conflict has to take into account the relative weight of each. This cannot be, of course, an exact measurement, and the judgment that a particular principle or policy is more important than another will often be a controversial one.” Dworkin, Taking Rights Seriously, p. 26. – According to Dworkin, the collision of legal rules and legal principles has to be resolved at the level of principles: “The court weights two sets of principles in deciding whether to maintain the rule …” Dworkin, Taking Rights Seriously, p. 78.
- 35.
Dworkin, Law’s Empire, p. 217: “I distinguished two branches or forms of integrity by listing two principles: integrity in legislation and integrity in adjudication.”
- 36.
Dworkin, Law’s Empire, pp. 217, 243. (Italics added.)
- 37.
E.g.: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Dworkin, Law’s Empire, p. 225 (italics added); “how to make … the best story … from the standpoint of political morality”, Dworkin, Law’s Empire, p. 239; “Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people’s rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community.” Dworkin, Law’s Empire, p. 255 (italics added); “… that the grounds of law lie in integrity, in the best constructive interpretation of past political decisions …” Dworkin, Law’s Empire, p. 262 (italics added); ”[Hercules] is guided instead by a sense of constitutional integrity; he believes that the American Constitution consists in the best available interpretation of American constitutional text and practice as a whole, and his judgment about which interpretation is best is sensitive to the great complexity of political virtues bearing on that issue.” Dworkin, Law’s Empire, pp. 397–398 (italics added); ”… which interpretation, all things considered, makes the community’s legal record the best it can be from the point of view of political morality.” Dworkin, Law’s Empire, p. 411. (Italics added).
- 38.
Dworkin, Law’s Empire, p. 262.
- 39.
Dworkin, “How Law Is Like Literature”; Dworkin, Law’s Empire, pp. 228–238,
- 40.
Cf.: “… in those in hard cases… [the lawyers] make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards.” Dworkin, Taking Rights Seriously, p. 22.
- 41.
Cf. Dworkin, Taking Rights Seriously, pp. 77–78. “Suppose a court decides to overrule an established common law rule that there can be no legal liability for negligent misstatements, and appeals to a number of principles to justify this decision, including the principle that it is unjust that one man suffer because of another man’s wrong. The court must be understood as deciding that the set of principles calling for the overruling of the established rule, including the principle of justice just mentioned, are as a group of greater weight under the circumstances that the set of principles, including the principle of stare decisis, that call for maintaining the rule as before. The court weighs two sets of principles in deciding whether to maintain the rule; it is therefore misleading to say that the court weighs the rule itself against one or the other set of these principles.”
- 42.
Dworkin, Law’s Empire, p. 413. (Italics added.)
- 43.
The term of purple passages was introduced by Ronald Dworkin’s (now deceased) wife who referred to the highly metaphorical notions in Dworkin’s text with it, as Dworkin himself mentioned during his visit in my researcher seminar in Finland in May 2008.
- 44.
Dworkin, “Hard Cases”, p. 105; cf. Dworkin, Law’s Empire, p. 239 et seq.
- 45.
Dworkin, Law’s Empire, p. 262.
- 46.
Dworkin, “Hard Cases”, pp. 116–117. – Iudex non calculat: if the decision-making procedure of a human judge, or of super-judge Hercules, J. for that matter, could be captured in purely quantified terms, that would be equal to justice computerized and calculated. If such were the case, legal decision-making could well be entrusted to a computer. But computers rate low in the weighing and balancing of value-laden arguments.
- 47.
Actually, the conceptions held by Duhem and Quine to a significant degree differ from each other, as is quite expectable, since the one author was a physicist and the other a philosopher. One reason for the said doctrine being commonly known as the Duhem-Quine Thesis is due to Quine’s acknowledgment of the significance of Duhem’s original ideas in the key section of his own classic article. Cf. Quine, “Two Dogmas of Empiricism”, p. 41, note 17.
- 48.
Kuhn, The Structure of Scientific Revolutions; Foucault, Les Mots et les choses. Une Archéologie des sciences humaines.
- 49.
On the social contract that would be reached in the original position behind the veil of ignorance in Rawls’ influential theory of social justice, Rawls, A Theory of Justice, pp. 136–142.
- 50.
Neurath, “Protocol Sentences”, p. 210. (Italics by Neurath). Cf. also: “The fate of being discarded may befall even a protocol sentence. No sentence enjoys the noli me tangere which Carnap ordains for protocol sentences.” Neurath, “Protocol Sentences”, p. 203. – Cf. Coffa, The Semantic Tradition from Kant to Carnap, p. 358: “The elements of the Protocol are ’the sentences that need no justification but serve as foundation for all of the remaining sentences of science.’” (The inner quotation from Carnap’s “Die physikalische Sprache als Universalsprache der Wissenschaft”, p. 438).
- 51.
Quine, “Two Dogmas of Empiricism”, pp. 41, 43. (Italics added in the full sentence).
- 52.
“According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Dworkin, Law’s Empire, p. 255. (Italics added.)
- 53.
Cf. Dworkin, Justice in Robes, p. 41: “My thesis about right answers in hard case is, as I have said, a very weak and commonsensical legal claim. It is a claim made within legal practice rather than at some supposedly removed, external, philosophical level. I ask whether, in the ordinary sense in which lawyers might say this, it is ever sound or correct or accurate to say, about some hard case, that the law, properly interpreted, is for the plaintiff (or for the defendant). I answer that, yes, some statements of that kind are sound or correct or accurate about some hard cases.” Cf.: Dworkin, “Pragmatism, Right Answers, and True Banality”, p. 365. – Thus, “a very weak and commonsensical legal claim (…) made within legal practice”, but the more philosophical issues are not evaded thereby.
- 54.
On Dworkin’s “noble dream”, cf. Hart, “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream”; Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream.
- 55.
On “small-scale narratives” of law and social justice, cf. Wilhelmsson, Senmodern ansvarsrätt. Privaträtt som redskap för mikropolitik, pp. 193–239.
- 56.
One of the best representations of case law reasoning based on the interplay of analogy and distinguishing is given in Levi, An Introduction to Legal Reasoning, pp. 9–25. Cf. also Dworkin, Justice in Robes, pp. 66, 69; Smith, “The Redundancy of Reasoning”, passim.
- 57.
Cf. Levi, An Introduction to Legal Reasoning, pp. 18–19.
- 58.
Levi, An Introduction to Legal Reasoning, pp. 20–25. The case was MacPherson v. Buick Motor Company (Court of Appeals of New York, 1916; 317 N.Y. 382; 111 N.E. 1050), with Benjamin Cardozo presenting the key line of argumentation in it.
- 59.
Wittgenstein, Philosophical Investigations – Philosophische Untersuchungen, § 83 (p. 39/39e).
- 60.
“Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards. (…) Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people’s rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community.” Dworkin, Law’s Empire, pp. 243, 255. (Italics added.)
- 61.
The definition of coherence suggested is not very simple, but the subject matter does not seem to admit of one, either. The bunch of criteria of mutual match, reciprocal support, common alignment, absence of dissonance, and/or shared congruence may be taken as an approximation of the issue, with focus on different tenets involved in the notion of coherence.
- 62.
Greimas and Courtés, Sémiotique. Dictionnaire raisonné de la théorie du langage, pp. 266–267, 376–377 (entries on paradigmatique, paradigme, syntagmatique, and syntagme).
- 63.
Jakobson, “Linguistics and Poetics”, p. 358: “The selection is produced on the basis of equivalence, similarity and dissimilarity, synonymity and antonymity, while the combination, the build up of the sequence, is based on contiguity.”
- 64.
Cf. Foucault, Les mots et les choses, passim. – The notion of a discourse formation is based on Michel Foucault’s archaeology of knowledge of the human sciences, as presented in his works from the late 1960s and early 1970s, viz. Les mots et les choses, L’Archéologie du savoir, and L’Ordre du discours, Foucault’s inauguration lecture at the Collège de France in December 1970 (published in 1971).
- 65.
Coffa, The Semantic Tradition from Kant to Carnap, p. 367.
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Siltala, R. (2011). Coherence Theory of Law: Shared Congruence Among Arguments Drawn from the Institutional and Societal Sources of Law. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_3
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