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Fundamentals without Foundations

This is a chapter in a forthcoming book, Exploring Justice in Extreme Cases: Criminal Law Theory and International Criminal Law (Cambridge University Press). In this chapter, I argue for a ‘coherentist’ approach to criminal law theory. 
 
Coherentism stipulates that we can make meaningful progress on mid-level problems without resolving ‘foundational’ questions. As humans in an uncertain universe, the best we can do is to try to reconcile the available clues and arguments. For example, we can discuss fundamental principles of a criminal justice system, without necessarily subscribing to one of the main foundational moral theories, and without determining which of those theories is the ‘correct’ one. By using the device of ‘mid-level principles’ (principles intermediate between practice and foundational theories), we can carry out fruitful analytical and normative work. 
 
For many readers, coherentism may at first sound too uncertain, superficial and non-committal -- like an invitation to ad hoc bricolage. Such objections underestimate both the rigour and ambition of the coherentist method. I will argue that the main objections to coherentism (eg lack of certainty) are actually objections to the human condition. I will strive to show that coherentism is more convincing and more reliable than foundationalist approaches, and also more transparent about the limitations of ethical deliberation. 
 
The coherentist approach accepts that our principles are human constructs, that our starting points are historically contingent, and that we have no guarantees of ‘correctness’. Nonetheless, it is important to try to determine whether institutions are just, using the best available methods that we have. I also argue that coherentism is the best explanatory and justificatory account of criminal law theory, i.e. the best theory of criminal law theory.