BOOK: Amaya on the Nature of Coherence and its Role in Legal Argument

Hart Publishing has recently published Amalia Amaya's The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument. The abstract reads:

Recently legal scholarship has been heavily influenced by coherence theories of law and adjudication. These theories significantly advance the case for coherentism in law, yet a number of problems remain. This ambitious new work is the first to develop a coherence-based theory of legal reasoning, and in so doing address, or at least mitigate, these problems. The book is organised in three parts. Part one critically analyses the main coherentist approaches to both normative and factual reasoning in law. Part two investigates coherence theory in a number of fields that are relevant to law: coherence theories of epistemic justification, coherentist approaches to belief revision and theory-choice, coherence theories of practical and moral reasoning and coherence-based approaches to discourse interpretation. Taking this interdisciplinary analysis as a starting point, part three develops a coherence-based model of legal reasoning, building upon the standard theory of legal reasoning, leading to a reconsideration of some of the basic assumptions that characterise this theory and suggesting some lines along which it may be further developed. Thus, the book not only improves upon the current state of coherence theory in law, but also helps to articulate a theory of legal reasoning that results in better decision-making.

THE AUTHOR

Amalia Amaya is a Researcher in the Institute of Philosophical Research at the National Autonomous University of Mexico.

BOOK DETAILS

March 2015   9781849460705  560pp   Hbk   RSP: £75 / US$150

Discount Price: £60 / US$120

Order Online

If you would like to place an order for the book you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CV7’ in the voucher code field and click ‘apply’

UK, EU and ROW: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849460705

ARTICLE: Ralf Poscher on Interpretaton and Understanding in Law. The Complexity of Easy Cases

Juris Diversitas is pleased to inform You about the new article of Prof. Ralf Poscher (Albert-Ludwigs-University Freiburg) Inerpretation and Understanding in Law. The Complexity of Easy Cases, published on Philosophi of Law eJournal. 

Abstract:      

Lon L. Fuller challenged the positivist distinction between the law “as it is” and the law “as it ought to be” by insisting on the need for interpretation even in easy cases of adjudication. Fuller argued that interpretation is always creative in the light of the purpose of the rule to be applied and thus always draws on the law “as it ought to be”. Andrei Marmor tried to defend positivism against this challenge by advancing the thesis that there is no need for interpretation in easy cases. He drew on Ludwig Wittgenstein’s remarks on rule following to suggest that in easy cases the law is just in need of understanding, not of interpretation. Although I also think that positivism can be saved from Fuller’s challenge, I do not think that it can be done with the help of Wittgenstein’s distinction between interpretation and understanding. Fuller’s challenge and Wittgenstein’s remarks on the relation between a rule and its application address different aspects of the process of adjudication in easy cases, which build upon, but which cannot be played out against each other. We have to distinguish between two different elements of our practice of adjudication in easy cases: On the one side the communicative interpretation of utterances – in the case of the law legal texts – in the sense Paul Grice was concerned with; on the other side the application of a rule thus identified as the content of a communicative intention that Wittgenstein’s remarks on rule following are concerned with. Fuller can be understood to have insisted rightly on the ubiquity of the former, which cannot be refuted by any account of the latter. The upshot, though, is not that Fuller’s challenge is successful. Its flaw, however, does not lie in the insistence on the ubiquity of communicative interpretation, but in its exploitation of an ambiguity of the creative element in two different kinds of interpretation. We have to distinguish between the epistemic creativity that can be involved in communicative interpretation and the creativity involved in amending the law via legal construction. Only the latter concerns the distinction between the law “as it is” and the law “as it ought to be”.