Barbara Baum Levenbook

The role of coherence in legal reasoning

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented.

THE MEANING OF A PRECEDENT

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example for both officials and a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Unlike rules, precedents have exemplar force, in which their conduct-guiding force may be restricted to partial categories, rather than whole ones. Their import is independent of their justification. The content and scope of a legal decisions extension is not set exclusively by officials. It is socially set and depends upon social salience.

How a Statute Applies

This article presents a new theory of statutory application that is superior to two traditional theories. One of them claims that statutory directives apply to act-tokens fitting the legislatures intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words in the statutes. These theories solve badly, or not at all, two problems: (a) accounting for the capacity of statutes to epistemically guide law subjects, and (b) avoiding literalism. Both traditional views do a limited job explaining why it is rational to promulgate statutes. The theory developed here, social salience theory, does better on all counts. According to social salience theory, in the normal and simplest case, statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. In addition, there can be conventions or something close to conventions to defer to experts on the statutes applications to particular cases.

EXAMINING LEGAL RESTRICTIONS ON THE RETARDED

Discussions of the legal rights of the retarded have revealed that retarded people typically have both special privileges and special restrictions in the law. Among the privileges are a legal incompetent’s immunity in contract which, as Glanville Williams has pointed out, is really a liberty not to pay what would otherwise be his contractual debts.1 (Whether that liberty is really an advantage, which is what the term ‘privilege’ usually suggests, is another question.) Among the restrictions in most states is the denial to a legal incompetent of a right to marry. At some time or other, retarded people have been denied the legal right to vote, to decide whether and when to have children, to serve on juries, and the right as children to a free public education. Some of these restrictions are commonplace today. Such legal restrictions have often been criticized,2 or defended,3 by courts and legal writers without an appreciation of the complexity of the moral issues they raise. My purpose in this paper is to examine various assumptions one might make about the moral status of the retarded in order to support a conclusion that they should have certain legal restrictions. The moral arguments for certain legal restrictions are more complex than has been appreciated by proponents or opponents of restrictions in the legal literature.

On universal relevance in legal reasoning

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkabilitys necessary relevance has important implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons.

Review essay / A theory of criminal justice

Hyman Gross, A Theory of Criminal Justice New York: Oxford University Press, 1979, xviii + 521 pp.