Coherentist Methodology is Morally Better Than Either its Proponents Or its Critics Think (But Still Not Good Enough)

Abstract

Those employing constructive interpretive methods and coherence theorists of law generally agree that the coherent reconstructed set of legal principles and norms must meet a high threshold of fit with legal doctrine and institutional practice. Critics of these methods and theories argue that the high threshold of fit they require lead law to be unacceptably conservative. But it is unclear why legal coherentist methods and constructive interpretation must fit legal doctrine to a high degree. The intuition is misplaced from coherence theories of truth and justified belief, where a high threshold of fit with some set of beliefs is necessary. An independent argument is needed for that claim in law. I am unaware of any persuasive independent arguments for a requirement of a high threshold of fit in coherence theories of law. If coherentist methods in law need not fit the settled law to as high a degree as either their proponents or critics think, then they are in theory, and potentially in practice, morally better than their critics urge. However, they are also in practice potentially morally worse than their advocates or critics think. As a first crude approximation, we might claim that judges with superior moral acumen who deploy coherentist methods will do justice more often than if they were more tightly constrained to fit the settled law. Regrettably, however, if the constraint of fit is lower than the conventional wisdom would have it, coherentist judges with poor moral judgment will more often produce unjust decisions. I will qualify this crude approximation later.