Coherence and Illegal Claims

Abstract

What do we want “coherence” to do in legal reasoning? That is, when we use “coherence”, what are we trying to achieve by its use rather than by using another idea? Lawyers should ask and answer a question like that about many concepts, such as “reasonableness”, “duty”, “foreseeability”, “wrongfulness”, but they have particular importance when seeking to understand how a legal system structures or holds itself together. Often this question is simply not asked, or not asked with any time or context to find a serious answer. Many judges use ‘coherence’ with good reason, but without the resources, particularly time and a setting to investigate. Many academics too call in aid the term to add weight to an argument, without detail. Poorly reasoned coherence risks other key values of a legal system, such as intellectual robustness, fairness and certainty. Coherence requires a full understanding of the institutions, reasoning, norms, substantive rules, procedures and outcomes in the objects connected to each other. This work feeds into a wider project trying to understand how and why legal systems change, particularly drawing on examples across tort law and criminal law. This paper: (1) introduces a recent example of coherence; (2) shows the objects of coherence reasoning: what is being made coherent with what; (3) analyses the group of purposes which coherence is part of; and then turns to applying coherence reasoning within the context of claims in tort which are alleged to be incoherent with a criminal prohibition, in particular “sanction shifting” from a person convicted of a crime to a tortfeasor connected to the crime.