Abstract
It would seem axiomatic that the law should be coherent in the sense that it should be consistent and correspond to an underlying justificatory rationale. Indeed, coherence would appear to be a good, in and of itself, and give rise to other benefits which are desirable in a legal system. In this article, I explore the value and achievability of coherence. I argue that it is largely inevitable that common law legal systems are not coherent, but that each legal system will comprise areas of coherence. I examine whether it is possible to improve coherence through legislation or adjudication but conclude that any coherence attained through the former may be temporary and achieving coherence through the latter is difficult both in principle and in practice. In looking at the value of coherence, I contend that while coherence may have various intrinsic and instrumental benefits, its value should not be overstated; many of the benefits which coherence is said to provide are present in legal systems where it is lacking; other benefits depend on the awareness of a country’s citizens and I suggest that, outside of extremes, citizens are probably unaware of the degree to which their legal system is coherent. Moreover, full coherence may lead to characteristics which are undesirable in a legal system.
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Notes
Bertea (2005) 170.
My concern here is solely with coherence in legal systems; I do not explore the value of coherence in other areas where it may be considered desirable such as: epistemology, ontology, ethics or morality.
There are different definitions of legal coherence; for a brief but excellent account of some see: Bertea (2005). I should also note the view that coherence is considered by some to be an elusive concept and that it is not possible to give a single definition of it, see Pethick (2008), though Pethick does suggest that it simply means “sticking together” (ibid, 407).
Baum Levenbook refers to this as having “internal interconnectedness”, Baum Levenbook (1994) 362.
Weinrib contends that no legal system has ever been wholly coherent: (1988).
As Bertea seems to acknowledge: “Coherence can help us to analyse the Community [ie: the European Union] to the extent that the normative order of the Community is viewed as an outgrowth of national systems—an order stemming from the legal traditions of the Member States and modelled on these traditions” (emphasis added), Bertea (2005) 155.
There will be some exceptions to this where, for instance, the earlier legislation has particular symbolic value for a society. In such a case, any attempt to amend it may be posited as remaining true to the original underlying rationale.
Raz makes a similar point when he writes: “Different legal institutions at different times pursue different goals; the implications of their activities are as numerous, diverse, and lacking in coherence as their explicit directives … Working out the implications of the law on the assumption that all of it was promulgated in pursuit of one set of principles is to be false to the spirit of all of the bodies which enjoy legal authority, and cannot be justified as an obligation to their authority”, Raz (1992) 302–303.
Obvious examples include Germany in the 1930s and 40s and apartheid era South Africa.
Raz (1992) 276. Raz is specifically referring to epistemic coherence theories here but his comments are pertinent for all accounts of coherence.
Dworkin (1986) 166.
Hershovitz (2006) 115–116.
Ibid. at p. 165.
Ibid. at p. 188.
Perry (2006) 198–199.
Such predictability is sometimes said to be part of the rule of law; Lord Bingham writes that the rule of law requires the law to be “accessible and so far as possible intelligible, clear and predictable” (emphasis added), Bingham (2007) 69.
Dworkin (1986) 188.
s 31(3) of the Senior Courts Act 1981.
Civil Procedure Rules, 54.5.
R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546, [21]–[23] (Dyson LJ). See, also: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [1982] AC 617, 630 and R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395–396 (Rose LJ). Bowman et al. (2000) also state that the current law allows a finding of sufficient interest where the claim is brought in the public interest. See, also, Lewis (2010).
Judicial Review Pre-Action Protocol, fn 1 at http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv [Accessed 10 October 2012].
Dworkin (1986).
Smith (2006) 143.
Raz (1992) 304.
An early example of this in action is Socrates’ refusal to flee and thereby escape the death to which he has been sentenced; he imagines the Laws of Athens, personified, arguing that, because he has benefited from their protection, he is obliged to obey them and accept his sentence: Plato (1993).
Morgan (2004) 395.
Bertea (2005) 170.
Morgan (2004) 395.
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Acknowledgments
I would like to thank Clare Kinsella and the reviewers for their comments on earlier drafts of this work; any errors remain my own.
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McGarry, J. The Possibility and Value of Coherence. Liverpool Law Rev 34, 17–26 (2013). https://doi.org/10.1007/s10991-013-9127-y
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DOI: https://doi.org/10.1007/s10991-013-9127-y