Interpretation and Coherence in Legal Reasoning

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  • Dickson 2001 ‘Interpretation and Coherence in Legal Reasoning’     
    • What do theorists mean by legal reasoning?
      • Reasoning about the law is ambiguous between:
        • reasoning from that content to the decision which a court should reach.    
        • reasoning to establish the content of the law 
          • This means there are 2 things reasoning could mean to theorists: (a) reasoning to establish the existing content of the law on a given issues (b) reasoning from the existing content of the law to the decision which a court should reach in a case involving that issue 
            • reasoning from that content to the decision which a court should reach.    
            • Ronald Dworkin believes that when judges decide a case according to law, they don’t resort to extra-legal considerations, so there would be no difference between a and b
    • The role of interpretation in legal reasoning
      • The role of interpretation is important in legal reasoning when there is a problem of linguistic indeterminacy    
        •  Recent advances in constitutional law have helped to fuel the continuing interest in the topic of interpretation in legal reasoning. 
          • This includes the interpretation under section 3 of the Human Rights Act  to interpret domestic law so that it is consistent with EU law ‘so far as it is possible to do so.’
    • Conservation and Creativity in legal reasoning
      • legal theorists approach legal interpretation is different ways too.    
        • However, legal theorists do agree that interpretation is not  an attempt to keep making the same decisions. 
          • It has a dualistic nature: both a backward looking conservative one and a forward looking creative one
      • Lots of the literature on legal reasoning discusses how to find a balance between conservation and creativity
    • Locating interpretation in reasoning
      • There are two ways interpretation can fit into reasoning
        • reasoning to establish the existing content of the law on a given issue 
        • reasoning from the existing content of the law which a court should reach when a case involving that issue comes before it    
      • Raz argues that we don't find a 2 stage approach to legal reasoning because of the two ways interpretation fits into legal reasoning
      • The fact that courts always seem to be able to decide cases by interpreting 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    
    • Points of disagreement in reasoning
      • What is the original aspect being interpreted?
      • Where does the balance fall between conservation and creativity?
      • How large is the requirement that interpretation by the judges should be constrained? 
      • Is it possible to have a general theory of interpretation?
      • Can interpretation in legal reasoning lead judges to the ‘one right answer?    
    • Why is legal reasoning interpretive at all?
      • Raz identifies that it is due to its authoritative nature    
        • Since authoritative directives claim to express a binding judgement about what ought to be done, it is part of our task in reasoning about law to establish the existence and meaning of those directives through interpretation    
          • •   Therefore, for Raz, it is the authoritative nature of the law that explains why legal reasoning is interpretive, whereas, for example moral reasoning is not.
    • The role of coherence in legal reasoning
      • Coherence is viewed as the unity of principle in a legal system. On this view, judges should try to realise the value of coherence in judicial decisions by interpreting the law as ‘speaking with one voice    
      • According to Raz, it should be more important for judges to follow what is morally right rather than continuously trying to stick to the grounds of coherence. 
    • Should coherence play a role in legal reasoning?
      • Judges are in a different position from legislators when it comes to deciding how the law ought to be developed. If judges interpret a law that is in conflict to existing law, they are in a more partial position, and it is the role of the legislators to correct any conflict    
        • •   However, would we be referring to ‘global coherence,’ whereby judges should strive to reach judicial decisions which cohere to the entire legal system, or ‘legal coherence,’ involving coherence to a particular section of the legal system?
      • •   However, would we be referring to ‘global coherence,’ whereby judges should strive to reach judicial decisions which cohere to the entire legal system, or ‘legal coherence,’ involving coherence to a particular section of the legal system?

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