3 - Two Models for Coherence

Summary

Chapter 2 concluded that coherence is linked to legal reasoning, but where exactly within the process of legal reasoning does coherence fit? Chapter 3 presents and contrasts two views about how legal reasoning is deployed — the positivist view and the non-positivist (interpretivist) view. Both agree that the law carries expectations with respect to the achievement of certain values, i.e., legal certainty and substantive correctness (justice). But they disagree about the relationship between those two values when it comes to legal reasoning, hence the different models for coherence that each view gives rise to. The positivist view gives rise to a model of ‘double coherence’, whereas the non-positivist view gives rise to a model of ‘single coherence’. The chapter ultimately sides with the latter view. Two grounds are offered for this conclusion. Firstly, the core assumptions of the positivist view regarding the different processes of legal reasoning allegedly at play when one is deciding easier and harder cases do not seem to hold. Secondly, following the positivist view may result in certain methodological pitfalls for adjudicators which the non-positivist view seems to avoid.