## 1. What Do Legal Theorists Mean By 'Legal Reasoning'?




This may seem like an easy question, for surely legal reasoning is
simply reasoning about the law, or about how judges should decide
cases. On closer inspection, however, our ease may evaporate, for both
of these formulations are ambiguous, at least according to some ways of
thinking about the law.  Some legal theorists regard the questions,
'what is the law?', and 'how should judges decide
cases?' as distinct questions with distinct answers (see e.g.
Hart 1994; Kelsen 1967; Raz 1979 & 1994). That is to say, their
accounts of law and their accounts of adjudication are not one and the
same, and they contend that in settling disputes which come before
them, the remit of judges is wider than merely trying to establish what
the law is as regards the issues in the case at hand. In adjudication,
such theorists claim, extra-legal considerations can come into play,
and judges may have discretion to modify existing law or to fill in
gaps where existing law is indeterminate. This being so, for some legal
theorists, the first formulation above, that legal reasoning is
reasoning about the law, is ambiguous between: (a) reasoning to
establish the content of the law as it presently exists, and (b)
reasoning from that content to the decision which a court should reach
in a case which comes before it. 




Moreover, the second formulation of the ambit of legal reasoning
given above, i.e. that legal reasoning is about how judges should
decide cases, is also ambiguous on some approaches to legal theory.
This is because the answer to the question, "how should a court
decide a case, reasoning from the existing law applicable to it?"
(i.e. legal reasoning in the sense given in (b) above) and the answer
to the question, "how should a court decide a case, all things
considered?", may sometimes come apart. A particular instance
might be the kind of situation which could arise for a judge in a
'wicked' legal system where the law on some issue is so
morally odious that, all things considered, the judge should not decide
the case according to the law at all, but rather should refuse to apply
the law (see Hart 1958; Hart 1994, chapter 9, section 3; Raz 1994,
essay 14. This possibility is also noted by Dworkin 1986, chapter 3,
101-108, in discussing whether the Nazis had law).




There are thus three things (at least, there may be others) which
legal theorists could mean by legal reasoning: (a) reasoning to
establish the existing content of the law on a given issue, (b)
reasoning from the existing content of the law to the decision which a
court should reach in a case involving that issue which comes before
it, and (c) reasoning about the decision which a court should reach in
a case, all things considered.




It should be noted that some legal theorists, most notably for
present purposes Ronald Dworkin, do not carve up the questions and
issues on this topic in the way outlined above. For Dworkin, when
judges decide a case according to law, they do no more than ascertain
the content of the law and apply it to the facts of the case. In other
words, judges never resort to extra-legal considerations in deciding
cases according to law: all the considerations which they are entitled
to take into account are part of the law. This means that, according to
Dworkin, when judges reason about the law in sense (b), what they are
doing amounts to no more nor less than reasoning about the law in sense
(a), i.e. reasoning to establish the content of the law (see Dworkin
1977 & 1986).




This entry is concerned with legal reasoning in senses (a) and (b),
and with sense (b) in particular. It should be noted that the
discussion does not directly address the different accounts of the
nature and limits of law which are revealed by those varying views
mentioned above regarding what it is that judges do when they reason
about the law in sense (b). Where such differences have a bearing upon
issues pertaining to the role of interpretation and coherence in legal
reasoning, they will be mentioned in the text. For further discussion
of the nature and limits of law, see various entries under *nature
of law* in this volume.


## 2. The Role of Interpretation in Legal Reasoning:


### 2.1 Some Intellectual Roots Considered




Recent interest in the role of interpretation in legal reasoning
springs from several sources. For some, interpretation is where we
should look in order to find the solution, or at least the only
possible response, to the problem of linguistic indeterminacy in law
which they perceive (in turn, renewed interest in the problems of
linguistic indeterminacy in law seems to have stemmed at least in part
from the resurgence in the last twenty years in scholarship addressing
Wittgenstein's remarks on rule-following in the Philosophical
Investigations (see e.g. Holtzman & Leich (eds.) 1981; Kripke
1982; Baker & Hacker, 1984 & 1985), and the migration of these
concerns from philosophy of language into philosophy of law (see e.g.
Marmor 1992 and the revised edition of that work, Marmor 2005; Stone
1995; Smith 1990). Certain aspects of this trend, most notably that of
academic lawyers employing ill-digested Wittgenstein to dubious ends,
are criticised by Bix 1993). According to this line of thinking, if
words, and legal rules composed of words, have no intrinsic meaning
and hence cannot, in and of themselves, constrain legal reasoning,
then it must be we--readers or interpreters--who supply such
meaning via the process of interpretation (see Fish 1989; Cornell
1992. Stone 1995 criticises this understanding of the role of
interpretation in legal reasoning, but notes its adoption by various
legal theorists). In the case of other theorists, interest in this
topic stems from a wish to investigate the parallels and divergences
between interpretation in law and interpretation in literature
(Levinson 1982; Dworkin 1985; Fish 1989). The arrival on the
jurisprudential scene in the mid-1980s of Ronald Dworkin's powerful
new account of law as an interpretive concept, with concomitant
implications for the activities of both judges and legal theorists
(see Dworkin 1986) also did much to contribute to interest in the role
of interpretation in legal reasoning. Moreover, this account seemed to
rouse Dworkin's legal positivist adversaries into elaborating more
fully upon something which he has always claimed has been seriously
underdeveloped in their work (see e.g. Dworkin 1977), namely an
account of the nature of adjudication, and of the role of
interpretation within it (Marmor 1992 & 2005; Raz 1995; Raz 1996a
& 1996b). Recent scholarship in constitutional theory concerning
the distinctive challenges posed by the interpretation of
constitutions has also helped fuel continuing interest in the topic of
interpretation in legal reasoning (see, for example, Bobbit 1991 &
1996; Raz 1998b; Rubenfeld 1998; Kavanagh 2002, 2003 & 2009 part
I; Sager 2004; Marmor 2005 ch. 9, Waluchow 2006 and the entry
 constitutionalism). 
In some jurisdictions academic and public interest in interpretation
in legal reasoning may have been sparked by changes in particular
legal arrangements: for example, as a result of the enactment of the
Human Rights Acts 1998 in the United Kingdom with its section 3 duty
to read and give effect to primary and subordinate legislation in a
way which is compatible with European Convention rights, or as a
result of the doctrine of consistent interpretation or indirect effect
developed by the European Court of Justice, requiring European Union
Member States' courts to interpret domestic law so that it is
consistent with EU law, so far as it is possible to do so. 


### 2.2 An Initial View of the Nature of Interpretation: Conservation and Creativity




As might be expected, as a result of these different (although often
intertwining) intellectual backgrounds and sources of interest in
interpretation, legal theorists approach this subject with very
different questions and concerns to which they give concomitantly
different answers. For all this, however, a surprising number of legal
theorists agree--at least at an abstract level--about
one central characteristic of interpretation, namely that
interpretation is a Janus-faced concept, encompassing both a
backward-looking conserving component, and a forward-looking creative
one. In other words, an interpretation of something is an
interpretation of *something*--it presupposes that there
is a something, or an original, there to be interpreted, and to which
any valid interpretation must be faithful to some extent, thus
differentiating interpretation from pure invention--but it is
also an *interpretation* of something, i.e. an attempt not
merely to reproduce but to make something of or bring something out of
an original. (See e.g. Fiss 1982; Dworkin 1986; Marmor 1992 &
2005; Endicott 1994; Raz 1996b & 1996c.) 




Much jurisprudential writing on interpretation in legal reasoning is
concerned with how to strike the right balance between the conserving
and creative elements in interpretation, and with the constraints which
are and/or should be operative upon judges as they undertake this
balancing act. Some theorists claim that such concerns about how one
ought to interpret the law indicate that it is part of the way that we
think about this practice that we regard rival interpretations as
subject to objective evaluation as good or bad, better or worse,
correct or incorrect (Dworkin 1986; Raz 1996b and 1996c). On this view,
characterisations of interpretation which attempt to impugn the
objectivity of such evaluations (e.g. Levinson 1982) are to be
understood as revisionist accounts which attempt to persuade us that
all is not as it appears to be with our practice of judging
interpretations to be good or bad, better or worse, correct or
incorrect as we currently understand it (see e.g. Raz 1996b).


### 2.3 Locating Interpretation in Legal Reasoning




It is important to consider how interpretation, as characterised in
subsection 2.2 above, fits into the discussion of the ambit of the term
legal reasoning in the opening section of this entry. The key to this
issue lies in interpretation's dualistic nature, i.e. that it has both
a backward-looking conserving aspect and a forward-looking creative
one. This dualism would seem to indicate that in interpreting the law,
judges both seek to capture and be faithful to the content of the law
as it currently exists, and to supplement, modify, or bring out
something new in the law, in the course of reasoning from the content
of the law to a decision in a particular case. In turn, this would seem
to indicate that interpretation, because of its dualistic nature, has a
role to play in both legal reasoning in sense (a), i.e. reasoning to
establish the existing content of the law on a given issue, and legal
reasoning in sense (b), namely reasoning from the existing content of
the law to the decision which a court should reach in a case involving
that issue which comes before it. 




One legal theorist who adopts exactly this approach, and so views
interpretation in legal reasoning as 'straddling the
divide' between identifying existing law, and developing and
modifying the law, is Joseph Raz (see Raz 1996a and 1996b). According
to Raz, the fact that interpretation has a role to play in both of
these activities assists in explaining why we do not find a two-stage
or clearly bifurcated approach to legal reasoning in judicial
decisions. Judges do not first of all engage in legal reasoning in
sense (a), having recourse only to legal materials, and then, having
established what the existing law is and determined how far it can take
them in resolving the instant case, then move on to a separate stage of
legal reasoning in sense (b) which requires them to look to extra-legal
materials in order to complete the job, because much of their reasoning
is interpretive and interpretation straddles the divide between legal
reasoning in senses (a) and (b). This point may assist Raz in defusing
some of the criticisms which have been levelled at the legal positivist
approach to legal reasoning such as that positivism's account is
phenomenologically inaccurate because when we examine cases, we do not
find two distinct stages to judicial reasoning, one to establish
whether any legal rules bear upon the problem at hand, and one wherein
judges effectively legislate to fill in the gaps when the legal rules
'run out' (see e.g. Dworkin 1977 & 1986). As Raz
himself notes, however (especially in Raz 1996b), this
'straddling the divide' approach may in fact seem to
undermine the very ideas that there is a tenable distinction between
legal reasoning in senses (a) and (b), and that there are gaps in the
law. Interpretation appears to blur or even erase the line between the
separate law-finding and law-creating roles which many legal
positivists ascribe to judges, and the fact that courts always seem to
be able to decide cases by interpreting the law may also seem to cast
doubt on the idea that the law is incomplete, and hence that judges
sometimes have to reach outside of the law in the adjudication process.
Interest in the pervasiveness of interpretation in legal reasoning, and
in the Janus-faced nature of interpretation may thus form part of the
background which has led legal theorists like Dworkin to deny that the
distinction between identifying existing law, and developing and
changing the law, as understood by certain legal positivists, is a
tenable or coherent one. That interpretation appears to operate at
every stage in the legal reasoning process may also have influenced
Dworkin's denial that there are gaps in the law, and his counter-claim,
contra Hart and Raz, that everything which a judge is entitled to rely
on in deciding a case is already part of the law (see Dworkin
1986).


### 2.4 Some Points of Disagreement




Legal theorists disagree about the proper characterisation of many
aspects of the schematic account of the interpretive process given in
subsections 2.2 and 2.3 above. A few of these disagreements will be
surveyed here in order to give a fuller picture of some of the issues
and views which are relevant to this topic. Accounts of the role of
interpretation in legal reasoning, then, differ regarding the following
matters (n.b. several of the following points overlap to some extent): 



**(1)** What exactly is the original or object which is
being interpreted in the case of law: the law as a whole?; certain
aspects of legal practice?; statutes?; judicial decisions?;
authoritative legal decisions?; legal texts? Raz 1996b claims that the
primary objects of interpretation are the decisions of legal
authorities. He reaches this conclusion as a result of his view that
law is an institutionalised normative system wherein the institutions
concerned operate by issuing purportedly authoritative directives
concerning what ought to be done. According to Raz, then, the central
role which authority plays in law means that when we come to interpret
the law, what we are primarily seeking to do is to establish the
existence and meaning of any purportedly authoritative directives of
legal institutions, and it is, therefore, the decisions of those
institutions which constitute the originals to be interpreted in the
case of law. (See further the discussion of Raz's views in subsection
2.5 below). This stance can be contrasted with that adopted by Ronald
Dworkin. The process of 'constructive interpretation'
(Dworkin 1986, and see also the entry
 interpretivist theories of law)
 which
plays such a central role in Dworkin's jurisprudential thought involves
interpreters, 'imposing purpose on an object or practice in order
to make of it the best possible example of the form or genre to which
it is taken to belong.' (Dworkin 1986, p52). Moreover, in the
case of legal interpretation, Dworkin appears to settle for the
argumentative social practice of law as the original to be interpreted
(Dworkin 1986, p63). This being so, for Dworkin, the object of legal
interpretation appears to be broader than that adopted by Raz. For Raz,
we interpret in order to establish whether any authoritative legal
directives are currently in force and bear upon the legal issue at
hand, and so we should look to the decisions establishing those
directives in getting the interpretive process off the ground.
Dworkinian interpretation, however, seems to have a more abstract and
global feel to it, in the sense that it is the social practice of law
as a whole (Dworkin 1986, 87-88), including the entire legal history of
a given jurisdiction, as well as any data speaking to the point or
purpose of legal practice in general, which constitutes the original to
be interpreted.



**(2)** How much emphasis is to be placed on the
conserving vs. the creative elements in interpretation? At the
conserving extreme, we find accounts such as 'originalism'
in US constitutional interpretation which claims that in interpreting
a particular provision of the Constitution, judges should seek to
establish the way in which the provision was originally understood by
those who ratified it (see e.g. Bork 1990). As close as possible
conformity with those original intentions thus furnishes us with the
standard of correctness in constitutional interpretation on this
approach. According to Bork 1990, adherence to originalism in US
constitutional interpretation is necessary to ensure that the
judiciary confines itself to its proper sphere of authority, thus
preserving the separation of powers and structure of government in the
form in which the founders of the US intended. Ronald Dworkin has
recently addressed directly the topic of originalism in US
Constitutional Interpretation and has argued that fidelity to the
Constitution's text does not exhaust constitutional interpretation,
and that the search for constitutional integrity (see further point 6
below, and the section on Coherence in Legal Reasoning) might require
interpreters to depart from the best interpretation of the
constitutional text considered apart from the history of its
enforcement (Dworkin 2006, ch.5). Accounts such as that offered by
Levinson (1982) are at the other end of the spectrum: they reject
originalism and give far more weight to the role of innovation in
legal interpretation. Indeed, Levinson contends that all US
constitutional interpretation is necessarily creative, due to radical
and pervasive linguistic indeterminacy in the law. If such approaches
wish to claim that there are standards by which we can judge
interpretations to be better or worse, correct or incorrect, then they
must find such standards other than in the conserving aspect of
interpretation, as the requirement that one be faithful to the meaning
of an original seems to be obliterated on such views. As was noted at
the end of subsection 2.2 above, some such views may wish to claim
that our practice of accounting interpretations as good or bad,
correct or incorrect is incoherent. One other possibility, however, is
that the notion of 'correctness' can be salvaged by being
pegged to the communal reactions of the relevant interpretive
community; our interpretations are the right ones when they accord
sufficiently with those of our similarly situated fellow interpreters
(see e.g. Kripke 1982 and those works discussed in
point **(3)** below). Some commentators have poured
scorn on the idea that this sort of approach could yield standards of
correctness worthy of the name. See for example Baker & Hacker
1984, who contend that Kripke's position amounts to the view that,
'an unjustified stab in the dark is unobjectionable as long as
it is made in good company.' (Baker and Hacker 1982, 81-82).



**(3)** Following on from point **(2)**
above: how big a role does the requirement that judges must be faithful
to an original play in constraining legal interpretation, and are there
any additional constraints which supplement the constraints generated
by the need to be faithful to an original which guide judges as they
interpret the law? For example, for Owen Fiss (1982),
'disciplining rules' in the form of those standards which
are constitutive of the profession of judging supply constraints upon
judicial interpretation which supplement the rules of language which
already constrain all language users in their attempts to understand
texts. According to Fiss, then, judges are constrained both by the need
to be faithful to the original legal text which they are interpreting,
and by supplementary norms of interpretation which are constitutive of
the judicial role (Fiss lists the requirement that judges must always
consult history when interpreting the law as an example of a
'disciplining rule'). Fiss' view is criticised by Stanley
Fish (1989), who contends that Fiss' 'disciplining rules'
would themselves require interpretation in order for judges to know
what they mean and require of them, and hence cannot supply constraints
upon judicial interpretation. Fish's contention that all potential
candidates which might constrain interpretation are themselves
susceptible to being interpreted in a variety of ways results in his
claiming that texts or originals cannot constrain judges at all in the
way in which is commonly supposed, as texts do not have meanings in
advance of particular interpretations of them. This seemingly radical
indeterminacy is deceptive, however, for although Fish removes the
constraints on interpretation provided by legal texts or supplementary
norms of the judicial profession, he replaces them with the
conditioning and training processes of 'interpretive
communities', which ensure that, '...readers are already
and always thinking within the norms, standards, criteria of evidence,
purposes and goals of a shared enterprise', such that, 'the
meanings available to them have been preselected by their professional
training.' (Fish 1989, 133).



**(4)** Whether or not it is possible to have a general
*theory* of interpretation. Raz 1996a rejects the possibility of
two types of general theories of interpretation:
'operational' or recipe-like theories which are designed to
guide judges to the right decision in a case which comes before them,
and theories which, although they may not aim to guide judges to the
correct decision, nonetheless claim to provide us with criteria via
which to distinguish good interpretations from bad, and so enable us to
check the correctness of decisions which have been made. According to
Raz, theories of the former kind are impossible because morality (to
which recourse must be had as regards the innovative aspect of legal
interpretation) is not susceptible to explanation via
'operational' theories, i.e., 'theories which would
enable a person whose moral understanding and judgement are suspect to
come to the right moral conclusions regarding situations he may face by
consulting the theory.' (Raz 1996a, p21. In this he follows
similar claims made by several contemporary moral philosophers, e.g.
Williams 1985; Dancy 1993). Moreover, claims Raz, theories which
purport to tell us how to differentiate good interpretations from bad
are also impossible because, by its very nature, innovation defies
generalisation, such that it is futile to attempt to construct a
general theory which differentiates good interpretations from bad as
regards the forward-looking aspect of interpretation. It should be
noted that (as is apparent from the discussions in this entry as a
whole), Raz does believe that it is possible to have an account which
explains certain aspects of the nature and role of interpretation in
legal reasoning; what he doubts is that it is possible to have a
certain kind of account of interpretation, namely an account in the
form of a theory which purports either to operate as a recipe for
concocting good interpretations, or to provide us with a general
account of how to evaluate interpretations as good or bad, right or
wrong (on this point see also Raz 2009 essay 12 section IX).




Ronald Dworkin, by contrast, does purport to offer judges a general
theory of legal interpretation which they can use to guide their
interpretive activities, and which, if followed correctly, will lead
them to the 'one right answer' in the case before them (on
Dworkin's 'one right answer' thesis, see further point
**(7)** below). For Dworkin, it is the aim of all legal
interpretation to 'constructively interpret' the social
practice of law, by imposing purpose upon it such as, 'to make
of it the best possible example of the form or genre to which it is
taken to belong.' (Dworkin 1986, p52). The more specific theory
which he believes that judges should follow in fulfilling this
task--'law as integrity'--'instructs
judges to identify legal rights and duties, so far as possible, on the
assumption that they were created by a single author--the
community personified' (see subsections 2.5 and 3.4, and the
entry
 interpretivist theories of law).
 It
should be noted, however, that while Dworkin's general theory of
interpretation is designed to assist in guiding judges to the one right
answer in a case which comes before them, he claims that it is not
recipe-like in the sense of providing judges with a detailed step by
step programme for correct judicial decision-making: 'I have not
devised an algorithm for the courtroom. No electronic magician could
design from my arguments a computer program that would supply a verdict
everyone would accept once the facts of the case and the text of all
past statutes and judicial decisions were put at the computer's
disposal' (Dworkin 1986, p. 412).




Dworkin's pro-theory stance has attracted criticism from a variety
of quarters. Fish (1989, essays 4, 5 and 16) claims that 'law as
integrity' is not a theory which judges can use to guide their
interpretive activities because it is a strategy which they cannot help
but put into practice, and to which they are always and already
committed simply in virtue of their membership in the judicial
interpretive community. Sunstein 1996 also warns against the kind of
'high-level theories' which Dworkin instructs judges to
construct and follow in deciding cases. Sunstein is suspicious of the
value of such theorising on the grounds that, 'it takes too much
time and may be unnecessary; because it may go wrong insofar as it
operates without close reference to actual cases; because it often
prevents people from getting along at all; and because general
theorizing can seem or be disrespectful insofar as it forces people to
contend, unnecessarily, over their deepest and most defining moral
commitments.' (Sunstein 1996, p50). Instead, Sunstein advocates a
special role for 'incompletely theorized agreements' in
judicial decision-making. Such agreements can occur where judges agree
on the outcomes of individual cases even though they disagree on which
general theory best accounts for those outcomes, or agree on a general
principle, but not on what that principle requires in particular cases,
or agree on a 'mid-level' principle (see Sunstein 1996,
p36) but disagree about both the general theory underlying it and
particular cases falling under it. Sunstein regards incompletely
theorised agreements as vital to legal reasoning, because they allow
the diverse individuals who constitute the judiciary to agree on
outcomes against the background of certain institutional constraints
such as that they have, 'a weak democratic pedigree and limited
fact-finding capacity' (Sunstein 1996, p6), must make many
decisions, make them fairly quickly, show adequate respect, to
litigants, and to each other, and avoid error insofar as is possible.
Sunstein presents a strong case for the role of incompletely theorised
agreements in law in general, pointing out that the institution of such
agreements is one of the most important social functions of legal
rules, as rules are capable of allowing agreement in the face of
disagreement, in the sense that sometimes judges can agree on outcomes
to cases governed by a rule whilst disagreeing about the rule's
justification (on this important function of legal rules see also Raz
2001).



**(5)** Whether or not interpretation is always of
something which to some extent already has meaning, or whether
interpretation is the *fundamental* determinant of the meaning
of linguistic expressions in, for example, legal texts. Marmor 1992,
2005 & Stone 1995 deny that interpretation is the fundamental
determinant of the meaning of linguistic expressions and contend that,
following a certain reading of Wittgenstein's remarks on
rule-following (namely the kind of reading offered by McDowell 1984
and Baker and Hacker 1985), it must be possible for us to grasp the
meaning of, for example, a legal rule, in a way which does not require
recourse to interpretation. Cornell 1992 & Fish 1989 deny this,
and contend that interpretation is all-pervasive, and is the
fundamental and inescapable determinant of meaning, 'all the way
down', in all cases. In the minds of some legal theorists at
least, this point has strong links with with the issue of linguistic
indeterminacy in law mentioned in subsection 2.1 above (see e.g. Fish
1989; Cornell 1992). Those theorists who contend that interpretation
is the fundamental determinant of the meaning of linguistic
expressions often claim that such interpretation is necessary because
legal rules expressed in language do not have determinate meanings and
hence cannot determine their own correct application; in John
McDowell's terminology, those rules, by themselves, cannot have
'normative reach.' (McDowell 1984 & 1992). This being
the case, so this line of thinking goes, interpretation is required in
order to bridge the gap between the inert legal rule and the
situations to which it applies. For these theorists, the pertinent
issue then becomes: how do we know that one interpretation rather than
another is in accordance with the rule, if the rule itself cannot
determine its own correct application? As Wittgenstein notes in his
remarks on rule-following, it seems that: ' 'Whatever I do
is, on some interpretation, in accord with the rule'',
such that we can, '...give one interpretation after another; as
if each one contented us at least for a moment, until we thought of
yet another standing behind it.' (Wittgenstein 1967, SS198
and SS201 respectively). Some theorists, e.g. Fish 1989, seem to
embrace this potential infinite regress of alternative interpretations
of rules (see also point **(3)** above) and attempt to
avoid the radical linguistic indeterminacy which it seems to entail by
replacing the standards of correctness demarcated by rules with the
conditioning and training processes of interpretive communities. For
theorists like Marmor (1992 & 2005) and Stone (1995) who deny that
interpretation is the fundamental determinant of the meaning of
linguistic expressions, the Wittgensteinian challenge is seen as a
kind of *reductio ad absurdum* which indicates that we have
gone astray in our understanding of how rules operate. Such theorists
seek to avoid linguistic indeterminacy, and reject interpretation as
the fundamental determinant of meaning by denying that there is a gap
which needs to be bridged between grasping a rule and understanding
those actions which it requires. As was noted above, this denial
usually proceeds via a non-sceptical reading of Wittgenstein's remarks
on rule-following, along the lines of that offered by McDowell 1984
and Baker and Hacker 1985.



**(6)** Which values judges should attempt to realise
in legal interpretation, and how those values are to be balanced
against one another. One debate on this issue is that between Dworkin
(1986), who champions the role of the value of integrity in
interpreting the law, and those who, like Raz (1994a), and
Reaume (1989), doubt whether Dworkinian integrity *is* a
value which should be pursued in legal interpretation. The value of
coherence in legal reasoning is addressed further in Section 3 of this
entry.



**(7)** Whether interpretation in legal reasoning can
lead judges to the 'one right answer' as regards the legal
issue at hand. For example, Finnis 1987 denies that it is possible for
interpretation in legal reasoning to lead judges to one right answer
in the sense claimed in Dworkin 1986, because of pervasive
incommensurabilities in the criteria by reference to which we are
supposed to adjudge one interpretation to be better than another.
Finnis argues, *contra* Dworkin, that while we should seek good
answers and avoid bad ones, we should not delude ourselves into
dreaming of uniquely correct answers to issues of legal
interpretation, for to do so commits us to, 'utilitarianism's
deepest and most flawed assumption: the assumption of the
commensurability of basic goods and thus of the states of affairs
which instantiate them.' (Finnis 1987, p. 375). Dworkin (1986
& 1991) remains firmly committed to the one right answer thesis,
although it should be noted that in Dworkin 1986 chapter 11 he makes
the point that in a sense there can be different 'right
answers' for different interpreters: 'For every route that
Hercules took from that general conception to a particular verdict,
another lawyer or judge who began in the same conception would find a
different route and end in a different place, as several of the judges
in our sample cases did. He would end differently because he would
take leave of Hercules, following his own lights, at some branching
point sooner or later in the argument.' (Dworkin, 1986,
p. 412). Raz 2009 contends that interpretive pluralism is a basic
feature of the concept of interpretation as we understand it,
i.e. that there can be several different and incompatible
interpretations of the same object, all of which can be good. 


### 2.5 Interpretation: Desirable or Necessary? or Why Is Legal Reasoning Interpretive?




The points of disagreement surveyed above speak to differing views
regarding how judges should go about interpreting the law, and how we
should understand their activities. Such concerns, however, do not
directly address the important question of whether there is something
about the nature of law which makes it either desirable or necessary
that interpretation should play a role in legal reasoning in the first
place. In other words: why is legal reasoning interpretive at all? 




Raz 1996c contends that while some conventions of legal
interpretation vary according to time and place, there are other
features which legal interpretation necessarily exhibits, owing to the
nature of law itself. While we can debate about the desirability of
conventions of interpretation falling into the former category (e.g. we
can consider the value of allowing the work of legal academics, or
records of Parliamentary debates to serve as aids to interpretation in
a particular jurisdiction), the latter category of features leave us no
room for manoeuvre: courts cannot help but have recourse to them in
interpreting the law. According to Raz, assigning a limited role to the
intentions of legislators in the interpretation of legislation is one
such necessary feature of legal interpretation. It is, he claims,
simply part of our way of thinking about legislative institutions that
their procedures and modes of operation are designed so as to allow
legislators to make the law which they intend to make. To assume
otherwise, Raz contends, is to render unintelligible any possible
justification for entrusting law-making powers to those institutions.
This being so, when judges come to interpret the decisions of
legislative institutions, they must do so such that the law thus
interpreted reflects the intentions of those who made it.




These considerations may also seem to speak mainly to the issue of
how we are to go about interpreting aspects of the law. However, the
reasons why it is important to pay attention to the intentions of
law-making institutions when we interpret the law also furnish us with
Raz's answer to the question of why legal reasoning is interpretive at
all. We pay attention to the intentions of law-making institutions
because it is important to establish which legal rules those
institutions have laid down, and what they mean. In turn, it is
important to establish the existence and meaning of legal rules laid
down by law-making institutions because of law's purportedly
authoritative nature. For Raz, legal institutions claim to express
binding and authoritative judgements regarding what ought to be done
which are designed to allow people to better conform to reason if they
follow the decisions of the authority than if they try to follow those
other reasons which apply to them directly (see Raz 1994, ch.10). In
deciding cases according to law, then, we have a responsibility to try
to establish the existence and meaning of any purportedly
authoritatively binding legal rules which have a bearing on the
situation under consideration, and we do so by interpreting the
decisions of law-making institutions in a way which accords with the
intentions of those institutions in making the decisions in question.
For Raz, then, it is the authoritative nature of law which explains why
legal reasoning is interpretive, whereas, for example, moral reasoning
is not. Law, unlike morality, stems from social sources (on the role of
social sources in understanding law, see Raz 1979 and the entry on
 legal positivism),
 from institutions
issuing purportedly authoritative directives which claim to express a
binding judgement about what ought to be done. Part of our task in
reasoning about the law is thus to establish the existence and meaning
of those directives, and, in order to do so, we must interpret the
decisions of law-making institutions in accordance with the intentions
of the law-makers in order to try to establish the content and meaning
of the law which they intended to make (see also Raz 1996a and
1996b).




It is interesting to compare Raz's stance on the reasons why legal
reasoning is necessarily interpretive with Ronald Dworkin's views on
this topic. Rather than being based on the view that in ascertaining
the content and meaning of the law, we should look to authoritative
social sources, Dworkin's contention that legal reasoning is
necessarily interpretive rests on an account of law which expressly
repudiates the Razian understanding of law as source-based. According
to Dworkin, the view that law is to be identified by reference to
authoritative social sources yields a grossly inadequate account of the
argumentative nature of legal practice, and of the nature and depth of
disagreement within it (see Dworkin 1986 ch.1). He contends that an
adequate account of these features of legal practice can only be gained
when we understand that law is an interpretive concept, i.e. that it is
a social practice wherein a certain interpretive attitude has taken
hold. The attitude in question comprises two components: the assumption
that the practice does not merely exist, but has a purpose or point,
and the further assumption that the rules of the practice are not
necessarily what they have always been taken to be, but rather are
sensitive to, and can be revised in light of, its point (Dworkin 1986
ch.2; also, the entry on
 interpretivist theories of law).
 For Dworkin, then, it is these features of the social practice
of law: that members of that practice dispute and disagree about what
the best interpretation of the rules of the practice are, in light of
its point, which dictate that legal reasoning is necessarily
interpretive. Once the interpretive attitude has taken hold amongst the
participants in a social practice, the only way to understand it
adequately is to do as the participants in that practice do: i.e. join
the practice and make the same kind of interpretive claims concerning
the point of the practice, and what the rules of it are in light of
that point, as they do. For Dworkin, this point holds good for the
activities of judges and legal theorists alike: anyone reasoning about
the law is required to treat it as an interpretive social practice and
offer interpretations of what it requires in light of the purpose or
point which they assign to it.


## 3. The Role of Coherence in Legal Reasoning:




As several commentators have noted (see Kress 1984; Marmor 1992; Raz
1994a), coherence theories, long influential in other areas of
philosophy (see, for example, the entries on the
 coherence theory of truth
 and
coherentist theories of epistemic justification) have more recently
found their way into the philosophy of law (for a general survey of
coherence theories in law which also considers them in the context of
coherence theories of truth, justified belief, ethics and justice, see
Kress 1996). While this migration may be attributed in part to the
frequent influence of the general philosophical climate upon the
intellectual weather systems of jurisprudential theorising, it also
makes sense to ask whether there is something about the nature of law
which makes it particularly ripe for explanation via coherence
accounts. For example, those commentators who view Ronald Dworkin's
theory of law as integrity as a coherence account appear to answer
this question in the affirmative (see e.g. Kress 1984; Hurley 1989):
coherence, in the sense of interpreting the law as speaking with one
voice as integrity requires, is a value which is supposed to have
special relevance in the legal realm, in terms of the role which it
should play in guiding judges seeking to interpret the law
correctly. It has also been noted that features of the law such as the
doctrine of precedent, arguments from analogy, and the requirement
that like cases be treated alike seem particularly apt to be
illuminated via some kind of coherence explanation. (See Kress 1984.
Raz 1994a notes the temptation here, but contends that there is
nothing inherent in arguments from analogy or in the requirement that
like cases be treated alike which demands that they be understood in
terms of a coherence account of adjudication. On the role of arguments
from analogy in legal reasoning more generally, see Weinreb 2005, and
also the entry
 precedent and analogy in legal reasoning.)
 Moreover, the idea of coherence as a special virtue of
interpretation in legal reasoning plays an important role in the work
of several major continental legal philosophers (see e.g. Peczenik
1989; Alexy 1989; Aarnio 1987; Alexy & Peczenik 1990). 




The following discussion attempts to explore some of these issues
concerning whether and why considerations of coherence have an
important role to play in understanding law. As this entry seeks to
illuminate the role of coherence in legal reasoning, the emphasis here
is on coherence accounts of adjudication, and on examining the role
which coherence plays in courts' reasoning about how to decide cases
according to law. This being so, this part of the entry discusses legal
reasoning in the sense outlined in formulation (b) in Section 1 ("What
Do Legal Theorists Mean By 'Legal Reasoning'?"), i.e.
reasoning from the content of the existing law on a given issue to the
decision which a court should reach in a case involving that issue
which comes before it.


### 3.1 What Constitutes Coherence?




Two central questions must be addressed in considering the role of
coherence in legal reasoning: what is the nature of the coherence
relation which features in coherence accounts of adjudication, and what
role does coherence play in explaining or justifying judicial decisions
in such accounts? 




Amongst those legal theorists taking an interest in the role of
coherence in legal reasoning, there is general agreement both that the
coherence in question must amount to more than logical consistency
amongst propositions (see Kress 1984; MacCormick 1984; Marmor 1992
& 2005; Alexy & Peczenik 1990) and that it is not clear from
many coherence accounts exactly what this something more amounts to
(see Kress 1984; Peczenik 1989; Marmor 1992). MacCormick 1984 views
coherence in terms of unity of principle in a legal system, contending
that the coherence of a set of legal norms consists in their being
related either in virtue of being the realisation of some common value
or values, or in virtue of fulfilling some common principle or
principles. Raz 1994a also characterises coherence in law in terms of
unity of principle. On his view, the more unified the set of
principles underlying those court decisions and legislative acts which
make up the law, the more coherent law is.




Other writers have attempted to supply a more formal definition of,
for example, a minimally coherent legal system (see Levenbook 1984), or
otherwise to flesh out in a more detailed manner the criteria of
coherence. Alexy and Peczenik 1990 define coherence in terms of the
degree of approximation to a perfect supportive structure exhibited by
a set of propositions, and list ten criteria by reference to which
coherence thus defined can be evaluated (the criteria are: (1) the
number of supportive relations, (2) the length of the supportive
chains, (3) the strength of the support, (4) the connections between
supportive chains, (5) priority orders between reasons, (6) reciprocal
justification, (7) generality, (8) conceptual cross-connections, (9)
number of cases a theory covers, and (10) diversity of fields of life
to which the theory is applicable). Such an approach raises many
questions, such as how these various criteria of coherence are to be
weighed and balanced against each other, and whether it is always the
case that the weighing operation will result in a complete ranking of
given sets of propositions as either more or less coherent than each
other, so that when faced with competing such sets, it is always
possible to find the most coherent set of propositions according to the
ten criteria. Alexy and Peczenik recognise that weighing and balancing
the criteria of coherence will be a complex matter, but appear to
assume that it will always be possible to establish which is the most
coherent of rival sets of propositions.




A further characterisation of the kind of coherence which is to be
sought in legal reasoning may be found in Ronald Dworkin's work. Many
writers regard Dworkin's account of integrity in adjudication as an
example of a coherence account. (See Hurley 1989 & 1990; Marmor
1992 & 2005. Kress 1984, although writing before Dworkin had fully
developed his account of law as integrity, also views Dworkin as
offering a coherence account of adjudication. Raz 1994a disputes the
idea that Dworkin's account of law should be understood as a coherence
account.) On this view, judges should try to realise the value of
coherence in judicial decisions by interpreting the law as
'speaking with one voice', i.e. they should identify legal
rights and duties on the basis that they were all created by a single
author, the community personified.


### 3.2 Coherence of What?




The next issues to consider are (1) what is to be made coherent in
coherence accounts of legal reasoning, and (2) what role coherence
plays in explaining or justifying judicial decisions on such accounts.
Regarding the question of what is to be made coherent in coherence
accounts of legal reasoning, Raz 1994a contends that coherence
accounts, when applied to law, require a 'base' or
something which is to be made coherent, which differs in character in
some crucial respects from the sort of base which features in coherence
accounts in other areas of philosophy. Raz points out that while
coherence accounts of justified belief take each person's belief set as
their 'base' or as that which is to be made coherent,
coherence accounts of law cannot be person-relative in this way, on
pain of failing to offer an account which is in touch with the concrete
reality of law in the jurisdiction under consideration. Raz's
contention is that the law of a given jurisdiction does not vary with
the beliefs of those subject to it, and in his view, that law is
objective in this way means that there must be a common base to which
coherence accounts in law are addressed. His suggestion in this regard
is that coherence accounts in law take court decisions and legislative
and regulatory acts as their base, and hold law to be the set of
principles that makes the most coherent sense of that base. Raz further
distinguishes between coherence accounts of law and coherence accounts
of adjudication. The essential difference between them is the stage at
which considerations of coherence come into play. In the case of a
coherence account of law, the whole of what the law *is* is
determined by applying a coherence test to those court decisions and
legislative and regulatory acts of a given jurisdiction. A coherence
account of adjudication, however, accepts that the vagaries of politics
and the influence of political considerations on legislative and
judicial decisions make it unlikely that the settled law of a
jurisdiction will exhibit coherence to any great extent. This being so,
if we are to apply a coherence account in order to determine how judges
ought to decide cases according to law (legal reasoning in sense (b)),
then we should assume a coherence-independent test to identify the
settled law of a jurisdiction first, and then bring in considerations
of coherence at a later stage, and hold that courts ought to adopt that
outcome to a case which is favoured by the most coherent set of
propositions which, were the settled rules of the system justified,
would justify them. 




MacCormick 1984 espouses a similar view of the role which coherence
can play in adjudication and gives an indication of how we might think
of the links between interpretation and coherence in legal reasoning.
According to MacCormick, in deciding a case according to law, courts
should first of all interpret the existing law in order to establish a
coherent view of some branch of the law, and they should do this by
showing how that branch of law is justified according to some coherent
set of principles or values which underlie it. The court should then
use this view of the law in order to justify its decision in a new case
which comes before it. On such an approach, then, once courts establish
what the settled law is, they should then interpret law in applying it
to a new case such that their decision is in accord with the most
coherent account which justifies that settled law.


### 3.3 Coherence in Legal Reasoning: Necessary, Sufficient or Desirable?




Once a stance has been taken on the nature of the coherence relation in
the case of law, many further questions concerning the role which
considerations of coherence are to play in legal reasoning come to the
fore. One important issue is that of how much emphasis is to be placed
on coherence in justifying a judicial decision. Is exhibiting some
degree of coherence with the existing law a necessary requirement of
any justified judicial decision? Is it both a necessary and sufficient
requirement, such that an account of the role of coherence in
adjudication supplies us with a complete explanation of how judges
should decide cases according to law? Or is coherence rather to be
regarded as a desirable feature of judicial decision making, but one
which can be overridden by other considerations in certain
circumstances? 




At this point in the discussion, it is possible to draw out some
further possible links between the two concepts with which this entry
is concerned, namely interpretation and coherence. If we hold that
legal reasoning in sense (b), namely reasoning from the content of the
law to the outcome which judges should adopt in a case before them, is
wholly (Dworkin 1986) or mainly (Raz 1996a) interpretive, then we can
reformulate some of the questions raised above concerning how much
emphasis is to be placed upon coherence in adjudication in terms of the
extent to which, in interpreting the law, we should interpret it in
such a way as to realise the value of coherence in judicial decisions.
So, for example, is coherence the sole desideratum which should guide
judges in interpreting the law, or is it merely one feature of a
successful such interpretation, and, moreover, is it a necessary
feature, or one which, although desirable, may be overridden by
competing values which judges should also try to realise in
interpreting the law?




Levenbook 1984 contends that it is a necessary condition for a
judicial decision to be legally justified that it coheres with some
part of the established law. She contrasts her understanding of this
requirement with that adopted by MacCormick 1978. According to
Levenbook, while MacCormick also holds that minimal coherence with some
part of the established law is a necessary condition of a judicial
decision being justified, he nevertheless contends that, so long as
this minimal standard is met, further considerations of coherence which
are also relevant to the decision can be defeated on consequentialist
grounds. Levenbook's view is that this approach gives coherence too
modest a role to play in legal reasoning; once a very minimal
requirement of coherence is met, this value is too easily defeasible by
other considerations. Levenbook finds this account of adjudication
troubling because, in her view, it fails to do justice to judges'
responsibility to be faithful to pre-existing law, a responsibility
which places the judiciary in a quite different situation from the
legislature when it comes to the question of how law ought to be
developed. She contends that a judge who, within the limits allowed to
him by the law, adopts a decision which is better on moral grounds over
one which displays greater congruence with the trend or spirit of the
existing law has made a mistake, and has adopted a legally unjustified
decision. Levenbook very succinctly focuses the dilemma which judges
must confront in deciding how much weight is to be placed on
considerations of coherence in judicial decisions: should judges always
adopt the outcome to a case which best coheres with the pre-existing
law, or can they ever be justified in adopting an outcome which is less
coherent but morally preferable? This way of focusing the dilemma which
judges may face brings out another important aspect of coherence in
legal reasoning, namely that granting a strong role to considerations
of coherence is to place considerable emphasis on the backward-looking
aspect of adjudication, as such an approach may require judges to place
greater value on adhering to what has gone before, rather than on doing
what would otherwise, on moral grounds, be the right thing.




Raz (1994a), who contends that coherence in legal reasoning is
sometimes desirable, but certainly defeasible, poses essentially the
same dilemma, but seems to place the burden of proof on those grasping
the other horn of it. That is to say, Raz asks not how could it ever be
justified for judges to deviate from the trend of the existing law in
order to adopt a less coherent but otherwise morally preferable
decision, but rather why should judges ever deviate from what is
otherwise the morally best solution to a case before them on grounds of
coherence? The burden of proof point is important because Raz's view
seems to be that arguments in favour of a strong role for coherence in
legal reasoning go through too easily, or are too readily adopted as a
default position, perhaps because of the fact that reasoning by analogy
is a common feature of many legal systems and seems to lend itself to
being characterised in coherence terms, such that the facts speak for
themselves in favour of the conclusion that considerations of coherence
have a special role to play in legal reasoning. Pointing out that
reasoning by analogy is not a necessary fact of life in all legal
systems, and that, even where it does feature, it is still necessary to
provide an explanation of the rationale of arguments from analogy, and
the links between such arguments and coherence accounts of
adjudication, Raz seeks to shift the burden of proof onto those who
champion coherence. If judges are sometimes to deviate from what would
otherwise be, according to law, the morally best outcome to a case
before them on grounds of coherence, then, Raz contends, we are in need
of a convincing positive argument why this should be so.


### 3.4 Why Should Coherence Play a Role in Legal Reasoning?




One such argument may well be found in a point already mentioned in
passing above, i.e. that judges are in a different position from
legislators when it comes to deciding how the law ought to be
developed. Raz (1979 and 1994a) argues that when faced with the choice
of adopting the (according to law) morally best outcome to a case over
an outcome which coheres better with the settled law, courts have to
bear in mind that if they choose the former route, then some
problematic consequences may ensue, such as that they may introduce
conflicting rules reflecting conflicting social and economic purposes
into the law, and hence create a considerable degree of dissonance with
regard to existing legal doctrines in a given area of law. Such
consequences need not dog legislative attempts to develop the law in a
way which deviates from the doctrinal past, because legislative
institutions have the power to sweep away the past in introducing new
legislation, and to do so in such a way as to radically reform a whole
area of law at one stroke. Courts, by contrast, can only make decisions
concerning the issues arising in the case before them, and have
considerably less opportunity to engage in radical reform of the law.
These factors mean that judicial reform of the law will always be
partial in nature, and, as was noted above, such partial reform brings
with it the possibility of introducing dissonance and conflict into the
law in the meantime. This may provide one reason why sometimes courts
should give greater weight to considerations of coherence with
pre-existing law in deciding cases which come before them, rather than
striking out in a (albeit otherwise morally preferable) direction which
coheres less well with settled law. 




On Dworkin's account of adjudication--at least when that account
is understood as a coherence account (see subsection 3.1 above)--we
find a different kind of answer to the question of why coherence has a
special role to play in legal reasoning. As was noted in subsection
2.4, for Dworkin, in adjudicating cases, judges should seek to
constructively interpret the law, i.e. to impose purpose on it in order
to make of it the best possible example of the form or genre to which
it is taken to belong (see Dworkin 1986, chs.2 & 3, and the entry
on
 interpretivist theories of law).
 For Dworkin, the form or genre of law is to provide a
convincing justification for the exercise of state coercion (see
Dworkin 1986, *passim*;), and, as
he regards both judges and legal theorists as engaging in constructive
interpretation (see Dworkin 1986, p90), Dworkin further contends that
any adequate jurisprudential account of law must explain how what it
takes to be law provides a general justification for the exercise of
the coercive power of the state (for discussion of this point, see Dickson 2001,
 chs. 5 & 6, Dickson 2004 and cf. the entry on
 interpretivist theories of law). 
 In *Law's Empire*, Dworkin
argues that such a justification can best be provided when the law is
viewed as the organised and coherent voice of what he refers to as a
'community of principle' i.e. a community whose members
accept that their fates are linked by virtue of the fact that their
rights and responsibilities are governed by common principles. So for
Dworkin, we must interpret law as coherent, in the sense of speaking
with one voice, because by so doing, we understand law as the voice of
a community of principle, and so as capable of providing a general
justification for the exercise of state coercion (see Dworkin
1986).




Some theorists are not so concerned to provide a
'law-specific' explanation of why coherence has an
important role to play in legal reasoning. For example, although
acknowledging that there may be much more to be said about what is
distinctive about legal reasoning, Hurley 1990 is largely content to
explore the consequences for legal reasoning which ensue from the
coherentist account of general practical reasoning which she
espouses.


### 3.5 Coherence in Legal Reasoning: Global or Local?




In considering the role of coherence in legal reasoning, a final point
to mention is that of how much of the law is to be made coherent
according to various jurisprudential accounts granting a role to
considerations of coherence. Are we talking of global coherence, such
that judges should strive to reach judicial decisions which cohere to
some extent with the settled law of an entire legal system, or should
the coherence we seek be more local in nature, e.g. coherence with
particular branches or areas of law? 




Levenbook 1984 is a supporter of local coherence, and criticises
those who, like Sartorius (1968 and 1971) and Dworkin (1977, and,
although not yet written at the time of Levenbook's article, Dworkin
1986), hold that justified judicial decisions are those which best
cohere with the law as a whole. According to Levenbook, champions of
global coherence ignore the fact that sometimes a legally justified
decision is supported by, in the sense of cohering with, principles
which are distinctive of one area or branch of the law, but the
principles concerned differ substantially from, and hence do not cohere
well with principles from other branches of law. On this line of
thinking, the judicial decision which coheres best with the principles
underlying some specific field of law may not result in increased
coherence of the entire system of law. That global coherence theorists
may well be led to reject such a decision, and to hold that an
alternative decision which coheres well with the overall system of law,
but which increases incoherence locally is the more strongly justified,
is, for Levenbook, a good reason to reject their theories: she contends
that any plausible account of adjudication must make room for the kind
of 'area-specific coherence' which she believes is
necessary in the case of law. Raz 1994a also champions local over
global coherence in adjudication, and his argument mentioned in the
previous section concerning the limitations on the reforming role of
courts, and the way in which this sometimes militates in favour of
coherence playing a role in judicial decision making, is intended to
support local coherence only. Peczenik 1994 claims that while the goal
of the kind of doctrinal interpretation undertaken by legal scholars
(which he refers to as 'legal dogmatics') is to establish
the unity of an entire legal system, the judicial interpretation
undertaken by judges is of a far more local variety, as it is concerned
merely with the norms applicable to the case in question, and because a
coherent interpretation of those norms may decrease their coherence
with other legal norms.




While, as Levenbook 1984 notes, Dworkin's account of integrity in
adjudication requires judges to attempt to view the legal system as a
whole as exhibiting coherence and speaking with one voice in
interpreting the law, Dworkin does also recognise that
compartmentalisation into different branches or areas of law is an
indisputable feature of legal practice, and he accordingly attempts to
integrate it within his vision of adjudicative integrity. He does so
via his doctrine of local priority in interpretation, i.e. that if a
given principle justifying a judicial decision does not fit at all
well with the area of law which the case is classified as falling
under, then this counts dramatically against deciding the case in
accordance with that principle, no matter how well such an
interpretation coheres with other areas of the law (see Dworkin 1986,
ch. 7). However, because of the strong pull toward global coherence in
law as integrity--expressed in Dworkin's claim that it is
necessary to strive to view the legal system as a whole as speaking
with one voice, the voice of an authentic political community, in
order that law can be seen as justifying state coercion--the
current compartmentalisation of the law is not an unrevisable given
for judges deciding cases, rather, it, too, is something which is
subject to the Dworkinian process of constructive interpretation. This
being so, he claims, when the compartmentalisation of the law does not
track widely held principles of those subject to the law accounting
current classificatory boundaries as important, then the doctrine of
local priority is to be given much less force. Indeed, where there is
a serious mismatch between the current compartmentalisation and actual
views about relevant similarities and differences between areas of law
held by those subject to it, it might be possible for judges to
discard the doctrine of local priority altogether, and undertake
radical reform of some departments of law in order to make them cohere
better with others, or even to erase entire the alleged boundaries
between certain branches of law in the course of interpreting the law
and applying it to new cases.