COHERENCE IN LEGAL JUSTIFICATION

Neil MacCormick

I. INTRODUCTION

Coherence in reasoning is one important test of its sound-

ness as reasoning. It is a test which is not fully satis-
fied by mere consistency, in the sense of an absence of
self-contradiction. What I say may be free of any internal
inconsistency and yet fail to 'hang together' or to 'make
sense' as a whole. The task of this paper is to elucidate
this elusive notion of 'coherence', of 'hanging together',
of 'making sense'. In the specific context of legal justi-
fication we find that i t has two applications: to reaso-
ning on matters of law, where what is in issue is 'norma-
tive coherence', and to drawing inferences of fact from
evidentiary facts, where what is in issue is 'narrative
coherence'. I shall consider these two applications in
that order.

II. NORMATIVE COHERENCE

(a) The Meaning of Coherence

Why is it that a set of legal norms might sometimes appear

incoherent, even when as a set they are not inconsistent?
An example of such a set which I previously suggested( 1)
was if a statute laid down different speed limits for dif-
ferent cars according to the colour they were painted.
Little did I realise when I figured that fanciful case
that there was a real case rather like it. Now I am indeb-
ted to Mr.Juctice Ruggero Aldisert (Justice of the
U.S.Court of Appeals, 3rd Circuit) for producing a real
case more or less to the same effect. For some time ago
the legislature in Italy determined that there should be
differential speed limits for different types and makes of
car(2)
Do such laws fail to make sense? And i f they so fail,
235

A. Peczenik et al. (eds.), Theory of Legal Science, 235-251.

@ 1984 by D. Reidel Publishing Company.
236 CHAPTER 3

why do they so fail? My answer to that is that they fail

to make sense if there is no common value which the enact-
ment of such laws subserves. In our examples, is there no
common value at issue? At least at first sight, it appears
that there is not. Consider: there are three ends which
statutes limiting driving speeds may promote, all of which
we may suppose to be of serious social value: the safety
of road users; economy in the use of fuel; and prevention
of excessive wear and tear of road surfaces. If the colour
of cars is purely a matter of taste, and many colours are
available (as is true in Western Europe and North America
at least), it seems doubtful whether any speed limit dif-
ferential between differently coloured cars could possibly
subserve effectively any such end as those envisaged
above. Moreover, if people have bought cars prior to the
colour-laws, it seems unfair that they should ex post
facto be treated differently according to the colour
choice they made. So without subserving any value special
to road safety laws, the colour-laws would in fact con-
flict with or subvert another value of importance in a
very general way to legal systems.
Of course, we can imagine circumstances in which the
colour-laws would be coherent, and perhaps the Italian law
did some coherent foundation. Perhaps there was a legis-
lative intent rationally to relate differential speed
limits to such objectives as economy and safety. Aldisert
J. reports, however, that the car-drivers of Italy did not
see it that way( 3). They treated the differential speed
limits as incoherent nonsense, and ignored them entirely.
Desuetude overruled the act. May be the car~drivers judged
wrongly. May be the lawmakers failed in persuasion rather
than in coherent thought. But we need not go into that.
Sufficient has been said to ground the suggestion, ,arising
from these examples, that at least one aspect of normative
coherence is a matter of the common subservience by a set
of laws to a relevant value or values; and an absence of
avoidable conflict with other relevant values (e.g. with
justice, as in the above case).
Are there then other aspects of coherence? One candi-
date which comes to mind has to do with principles. We
might say that a set of rules is coherent if they all
satisfy or are instances of a single more general prin-
ciple. If it is a principle that human life ought not to
be unduly endangered by motor traffic on the roads, this
will (help to) make sense of speed limit laws and many