Special Workshop Abstracts

Special Workshop Title:	Coherence Theory of Law and Analogy
Author:	Cláudio Michelon
Paper Title:	Practical Reason in Private Law: Coherence and Beyond
Abstract:	Legal theorists heavily rely on coherence as a strategy to settle rationally particular legal problems. Different levels of coherence (Weinrib and MacCormick, for instance, separate between plain consistency and coherence) where theorized, and different explanations where given to explain why incoherence might exclude some sorts of justifications for human action. Of course, there are different ways in which coherence is said to be able to justify a correct answer to a particular problem. Some, like Dworkin, believe that the answer to a particular problem should be found in a theory that coherently explains the past decisions on a particular social group. Others would assume, sometimes not explicitly, that coherence is the ultimate (perhaps the only) criterion of rational justification. Philosophers such as Alasdair MacIntyre, however, have already pointed out that there are limits intrinsic to coherence as an argument to justify a particular course of action. The limit case is that in which two internally coherent moral theories point out diferent answers to the particular case. In that situation, arguments of coherence won’t be enough and there is a need for further criteria of rationality, beyond coherence. MacIntyre himself, while commenting Plato’s Republic, points out a number of those further criteria for rationality. As far as private law is concerned, Ernest Weinrib has put forward a theory in which coherence takes precedence over every other criterion of rationality. Private law, as Weinrib sees it, ends up being a self-referential system where the value of a particular decision stems from the coherence of the underlying justification. In the paper, it is argued that, although his anti-functionalism is basically correct, the moral insulation of private law within itself, which would follow from taken coherence to be the only criterion of rationality applicable to arguments of private law, cannot be sustained. Other alternative criteria of rationality are examined that, if adopted, would explain both a) private law’s relative autonomy regarding other aspects of ethics and b) how the rational investigation of private law depends on a conception of fulfilling live.