Certainty and Reasonableness in Law”

Does Arguing from Coherence Make Sense? Stefano Bertea* * A preliminary version of this essay was presented at the symposium organised by the Department of Speech Communication, Argumentation Theory, and Rhetoric at the University of Amsterdamon the 27/02/04. I wish to express my indebtedness to Dora Achourioti, Francesco Belvisi, Frans van Eemeren, Eveline Feteris, Bart Garssen, Jean Wagemans, Peter Houtlosser, and Henrike Jansen for their helpful remarks. Needless to say, the responsibility for the views expressed herein as well as for any errors of form or content rests solely with me. Abstract: In this paper the argument from coherence is submitted to a critical analysis. First, it is argued to be a complex form of coordinative argumentation, structured on various argumentative levels. Then, using the pragma-dialectical theory of argumentation a distinction is brought out between two basic forms of the argument from coherence: in one use this argument occurs as a sequence of two symptomatic arguments; in the other use we have a main symptomatic argument supported by a subordinate pragmatic argument. Finally, from an evaluative point of view it is assessed whether the argument from coherence can be found acceptable as a tool for settling disputes. It is claimed that in general, we can welcome this argumentative structure as sound and fully acceptable provided that we are aware of the interpretative discretion its use implies. Keywords: coherence, argumentation theory, pragma-dialectics, legal reasoning, jurisprudence, law. 1. Introduction The idea of coherence is deeply ingrained in the practice of contemporary legal systems: national courts commonly invoke arguments from contextual harmonisation, general principles, analogy, and precedents, all of which use the notion of coherence, though each to a different extent. For a comprehensive survey of the main arguments currently employed by judges and legal practitioners within legal systems around the world see MacCormick and Summers (eds., 1991). The special significance of coherence in law has been emphasised in legal theory as well. In particular, Neil MacCormick’s seminal work on legal reasoning has driven several theorists to acknowledge the importance of coherence as an ideal feature of law and as a regulative criterion of judicial argumentation. See MacCormick (1994, pp. 152-194). So coherence has become a popular topic in jurisprudence. Among the most interesting recent contributions from jurisprudence to the study of coherence are Levenbook (1984), Dworkin (1986, pp. 164-275), Alexy and Peczenik (1990), Alexy (1998), Rodriguez-Blanco (2001), and Hage (2004). A critical approach to the role of coherence in law is endorsed by Raz (1994), and Kress (1999). In legal theory by coherence it is meant something different from, and more than, logical consistency of propositions. But it is not clear exactly what this ‘something more’ amounts to. Thus, coherence is often defined in figurative language as the equivalent of ‘hanging together’ (MacCormick, 1984, p. 235), ‘making sense as a whole’ (MacCormick, 1984, p. 235), ‘cohesion’ (Zaccaria, 1990, p. 269), ‘consonance’ (Villa, 1990, p. 433), ‘speaking with one voice’ (Dworkin, 1986, p. 165). A coherent set might therefore be described as a ‘tightly knit unit’ (Peczenik, 1989, p. 159). Which makes coherence a sort of entailment, a ‘kind of internal interconnectedness’ (Levenbook, 1984, p. 362), a ‘plausible connection’ (Villa, 1990, p. 433) that is not linear and asymmetrical, but circular and symmetrical: the elements of a coherent structure are mutually supporting and reinforcing (Alexy and Peczenik, 1990, pp. 132-139; and Raz 1994, pp. 264-265). Thus, as MacCormick (1984, 238) observes, a whole is coherent if its parts are related, instrumentally or intrinsically, either to the realisation of some common values or to their fulfilment. Coherence is argued on this basis to be a form of supportive rationality (Peczenik, 1990, 279-280). The argument from coherence – the argumentative structure that consists in bringing the idea of coherence into play to justify a given standpoint – has been part and parcel of this interest in coherence. However, while the notion of coherence is used widely in adjudication, and this use is commonly found acceptable, little attention has been paid to the nature and structure of the argument itself. Legal theorists have by and large contented themselves with observing how often the courts invoke coherence, and with pointing out why we should regard this appeal as legitimate within contemporary legal orders. So the argument from coherence has been detected as underlying a significant number of argumentative practices in law, but it has yet to be defined and characterised in detail in an analytic study of legal reasoning. This essay intends to fill this gap by entering specifically into the nature, structure, essential features, and justification of the argument from coherence. A comprehensive study of the argument from coherence requires an analysis and an evaluation: on the one hand, I will be analysing the structure of the argument from coherence and showing its possible internal variations; on the other hand, I will be evaluating this argumentative form and setting out the premises which can serve as a basis for understanding the degree of discretion involved in the appeals to coherence in law. A rational reconstruction of argumentative practices is aimed at representing and evaluating all their constitutive elements, both implicit and explicit. Rational reconstruction can be divided into two main components: analysis and evaluation. Analysis is carried out to identify the structure of arguments and the relations between their parts. It will ideally provide for us, in the end, a general structure for any given type of argument. Evaluation builds on analysis in order to determine whether the argumentative steps, considered singly, are consistent with the code of rules governing rational discussion. Evaluation is designed as well to identify which argumentative steps entail a recourse to evaluative judgements and allow for room to manoeuvre. In the following sections, I will first analyse and then evaluate the argument from coherence. It will be helpful, in providing a rational reconstruction of this argument, to make use of the pragma-dialectical theory of argumentation. The pragma-dialectical has been set out by van Eemeren and Grootendorst (1984, 1987, 1988, and 1992). This approach works as both a heuristic model – enabling us to grasp the analytic structure of arguments – and a critical model, enabling us as well to understand the quality of arguments. In this, the approach enables a rational reconstruction of arguments. Analysis The forms of the argument from coherence In the argument from coherence a standpoint is defended and shown to be the right answer to a legal dispute on the basis of the connection with the system of which the same standpoint is a constituent. An example will serve to introduce the form of this argument frequently used in legal contexts. This example derives from the case-law of the European Court of Justice (hereinafter, the Court) and, in particular, from the field of judicial review. In the context of the European Community (hereinafter, the Community) the system of judicial review is laid out in the Treaty establishing the legal order of the Community (hereinafter, the Treaty). In the Treaty we find a legal regulation of judicial control on the acts carried out by Community institutions. However, the Treaty provisions are quite basic and schematic. So the Court stepped forward several times to clarify them and fill their gaps. In providing these clarifications the Court often appealed to the notion of coherence. A question the Treaty fails to clarify is how a national court should proceed when the legality of a measure based on Community acts is disputed and urgency requires that a decision is taken before the alleged invalidity of the act is declared by the Court. The matter was considered in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderithmarschen & Zuckerfabrik Soest [1991] ECR I-415. At issue here was the validity of a Regulation repealing a levy on sugar. The plaintiffs questioned the legality of this Regulation on the ground that it violated the prohibition against retroactivity. At the same time, the Court was asked whether an interim measure of suspension could take effect until a ruling was pronounced on the validity of the Regulation. In deciding these joined cases, whereas the Court upheld its exclusive competence to declare the invalidity of Community acts, it appealed to coherence to state that, under given conditions, national courts have the power to suspend the enforcement of a measure based on the impugned act. In particular, the Court noted that applicants in an action for annulment are enabled ‘to request suspension of the enforcement of the contested act’ and the Court is empowered ‘to order such suspension.’ Therefore, ‘the coherence of the system of interim legal protection ... requires that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested’ (§ 18). This example shows that the appeal to coherence in law presents, in its essentials, the following structure: ‘the coherence of the legal system requires (does not require) a given solution to the case at hand’ or, to put it the other way round, ‘a given solution is (not) required by the coherence of the legal system.’ But, if we hold, on the pragma-dialectical approach, that arguing is a form of communication – i.e. to argue is to enter into a dialogue, as opposed to merely utter a standpoint – we see that there must be more to the argument from coherence than what is explicitly stated in the appeals to coherence just considered. From this perspective, the simple statement ‘a given solution is (not) required by the coherence of the legal system’ is not yet a legal argument. If we are to transform this statement into an argument from coherence, we need a step that explains why the chosen solution is coherent with a given legal system. Then, the statement can be transformed into an argument when the implicit step on which it rests is made explicit. In this step we can refer to either normative or factual considerations. In a normative consideration, a relation of coherence between the chosen solution and the system is set up based on that system’s norms – i.e. on its precedents, rules, principles, and goals. Therefore, the hidden step to be made explicit might assume the following form: ‘the chosen solution is (not) coherent with the given legal system since it fits (does not fit) well with a set of norms of that system.’ In a factual consideration, the relation of coherence between the chosen solution and the system is supported by consequentialist remarks, that is, by evaluations concerning the consequences, or implications, of a given decision. The hidden step here can be expressed as follows: ‘the chosen solution is (not) coherent with the given legal system since it would carry certain implications that fit (do not fit) well with that system.’ The addition of this implicit step, in either of its two versions, transforms a mere statement in an argument, meaning a standpoint supported by reasons. Although in actual argumentative practices in law this step is not always expressed, it is a necessary component of the argument from coherence for otherwise we could not enter the argumentative realm at all. In other words, this step is essential from the argumentative point of view. The addition of this step to the original statement imparts the following form to the argument from coherence: ‘solution X is (not) required because X is (not) coherent with the system S since X fits (does not fit) well with the set of norms N that is part of the system S’. An alternative version of the argument from coherence is ‘solution X is (not) required because X is (not) coherent with the system S since X would carry the implications Is that fit (do not fit) well with the system S’. These are the two basic forms of the argument from coherence. We can use the pragma-dialectical conventions to represent these two argumentative structures as follows. Form A 1 X is (not) required ‘ 1.1 X is (not) coherent with S ‘ 1.1.1a & 1.1.1b X fits (does not fit) well with N N is part of S Form B 1 X is (not) required ‘ 1.1 X is (not) coherent with S ‘ 1.1.1a & 1.1.1b X would carry Is Is fit (do not fit) well with S 2.2 The features of the argument from coherence This schematisation can help us to bring out certain features of the argument from coherence. First, it shows that the argument from coherence is a form of complex argumentation, meaning by this expression an argument in which not one but several reasons are put forward in defence of a given standpoint. Complex arguments can be broken down into various components. In particular, in the general form of the argument from coherence we find a number of argumentative moves aimed at defending a standpoint. The standpoint is: ‘solution X is (not) required.’ The argumentative moves differ in part in the two forms. In Form A they are ‘X is (not) coherent with the system S’; ‘X fits (does not fit) well with a set of norms N’; and ‘the set of norms N is part of the system S.’ In Form B the argumentative moves are ‘X is (not) coherent with the system S’; ‘X would carry the implications Is’; and ‘Is fit (do not fit) well with system S’. These argumentative moves stand at different argumentation levels. In both Form A and B of the argument we have a main argument and a subordinate argument. The main argument is ‘solution X is (not) required because X is (not) coherent with the system S.’ The subordinate arguments differ in the two forms. In Form A we have the subordinate argument ‘X is (not) coherent with S because X fits (does not fit) well with a set of norms N that is part of the system S.’ In Form B we have the subordinate argument ‘X is (not) coherent with the system S since X would carry the implications Is that fit (do not fit) well with system S.’ So the defence of the standpoint is built layer after layer: the standpoint is supported by a (main) argument, which in turn is supported by another (subordinate) argument. The subordinate argument is composed of two statements making up a coordinated attempt at defending the standpoint. Since the statements in the combination must be taken together to yield a conclusive defence, the argument from coherence is to be considered a form of coordinative argumentation. Further, the general form exhibits the existence of an internal distinction between two different types of argument from coherence. In Form A, the argument from coherence is a combination of two symptomatic arguments. First, the arguer will try to make her point (X) by showing that a relation of concomitance exists between X and S: we should opt for a given solution because it is a particular expression of the system of which the solution will become a part. Second, this relation between X and S is supported by another symptomatic relationship, that between X and N: the particular decision can be understood as a characteristic part of a more general system of norms. In Form B, by contrast, the argument from coherence is a combination of symptomatic and pragmatic argumentation. While at the main level of argumentation we find an appeal to the inherence of X in S, the justification at the subordinate level appeals to an effect produced by X. In the pragma-dialectical perspective the argumentation scheme based on a cause-effect relation (pragmatic argumentation) is one of the three main schemes of sound argumentation, along with the argumentation scheme based on a symptomatic relation and the argumentation scheme based on a relation of analogy. On these types of argumentation, see van Eemeren and Grootendorst (1992, pp. 94-102). Therefore, the subordinate level makes this version of the argument from coherence radically different from the one previously considered (as Form A). It also emerges, from the foregoing definition and treatment, that the argument from coherence is a context-establishing argument. Context-establishing arguments presuppose the idea that ‘ascription of meaning can never be carried out as an absolutely abstract exercise’(Bańkowski and MacCormick, 1991, p. 366). There are several types of context-establishing argument (genetic, historical, logical, comparative, etc.). Among these, the argument from coherence can be described as a teleo-systemic canon. By teleo-systemic canon it is meant a combination of teleological and systemic arguments where the defence of the standpoint will take into account both the legal system’s overall scheme and its fundamental ideals, values and goals. The argument from coherence is an instance in which both teleological and contextual considerations come into play and combine to justify a decision. When we argue from coherence we provide reasons for a standpoint by taking into account its placement within the system as well as its relationship with the fundamental goals of the system. The connection between the argument from coherence and the purposes of a system brings out the dynamic nature of this argumentative structure that conceives the system referred to as a set of elements changing over time, its components being each related to the others, and so provides a “moving picture” of that system. Within these general features, common to all arguments from coherence, different instances of this argument can exhibit different traits at a more specific level. Noteworthy in this regard is the difference we can see in an argument from coherence framed in reference to the precedents and pre-existing rules of a system vis-à-vis an argument from coherence framed in reference to a system’s principles and goals. When an argument establishes a relation of coherence between a solution, on the one hand, and the precedents and rules of a legal system, on the other, it seeks to do justice to the decision-making authorities’ duty to be faithful to pre-existing law. This makes it a backward-looking and conservative argument placing emphasis on the past and on the obligation to adhere to the law enacted beforehand when legal disputes are to be solved. As Raz (1994, p. 302), puts it, coherence ‘forces one to decide in a certain way because past decisions are of a certain character. Coherence gives weight to the actual past, to the concrete history of the law.’ On this aspect, see also Levenbook (1994, p. 359). By contrast, an argument from coherence that appeals to the system’s goals and principles is forward-looking. By emphasising the goals to be achieved and the import of principles, the argument can be used to give voice to the need of innovating the system. In this use, the argument from coherence keeps in view the future of the legal system, and the system itself is conceived of as a set of goals to be pursued and fulfilled (in the future) rather than as a number of previously formulated rules and precedents prescribing this or that conduct. Another distinction internal to this argumentation structure relates to the inclusiveness of the notion of coherence brought into play. Coherence considerations can be global or local. In a global concept of coherence, the chosen solution gets connected with the legal system as a whole; in a local notion of coherence, the chosen solution gets connected with the components of a given branch of the legal system. Accordingly, we have global arguments from coherence establishing a relationship between a part of the system and the whole system, and local arguments from coherence establishing connections between single components within the system. A final important distinction is that between the affirmative and the negative version of the argument from coherence. For the negative version of this argument is a specific form of the argument from absurdity. Like the argumentum ab absurdo the negative version of the argument from coherence enables one to reject a proposed solution on the ground that it would amount to a provision incompatible with the rest of the system it will be part of, and hence an absurd, non-reasonable, norm. In legal contexts the argument from absurdity is seldom used in isolation, acting as a conclusive reason for a given decision; more often it is associated, and used in combination, with other argumentative structures which it supports and strengthens. Regarding this see Tarello (1980, pp. 369-370). The subsidiary character of the negative version of the argument from coherence allows us to understand the different argumentative force of the negative and the affirmative form of this argument. In the affirmative version an appeal to coherence is designed to arrive at a preferred solution selected among a number of alternatives. So it gives us a criterion of choice among competing solutions, directing us to go with the solution that best coheres with a given system. By contrast, in the negative form the argument from coherence justifies one in rejecting a proposed solution, but it cannot in itself determine which other solution should be chosen instead. 3 Evaluation: quality and weaknesses of the argument from coherence Arguments can be evaluated both in general terms and in particular contexts. At a general level, one should ask whether a given argumentation form is allowed (i.e. whether it is structurally correct and substantially sound) and under what conditions it can be considered a legitimate defence of a standpoint. At a more specific level, one should ask whether the general argumentative structure chosen for the case at hand was correct, and then whether it was correctly applied. The specific enquiry is as important as the general one, since even a generally sound argumentative structure can turn out to be inappropriate in particular circumstances. In this section, I will consider these evaluative dimensions in turn: first the question as to whether the argument from coherence can be considered a valid and admissible argumentative structure, and then the questions that may come to light as this argument gets applied to concrete cases. 3.1 The validity of the argument from coherence In general terms, the argument from coherence can be said to be structurally composed of a coupling of argumentation schemes: a symptomatic scheme plus either a symptomatic or a pragmatic one. Singularly taken, each of these arguments is widely applied in law and deemed perfectly sound: symptomatic and pragmatic considerations are well known to lawyers, who use them widely to determine the meaning of norms, and who regard them as legitimate forms of argument. As a result, the argument from coherence stands as a valid form of argument in law. Then it is not so much the structural validity of the argument from coherence as such that can be questioned as its substantive acceptability as a tool with which to settle legal disputes, for the idea of coherence has attracted criticism that may make less appealing its use in law. Raz (1994, p. 280), in particular, sees a tension between coherence and law: law does not constitute ‘a coherent rational system,’ but rather a ‘higgledy-piggledy assemblage of the remains of contradictory past political ambitions and beliefs.’ If that is so, it may well prove arbitrary to resort to argumentation to impose coherence upon a domain realistically definable as ‘a hodgepodge of norms derived from the conflicting ideologies and the pragmatic necessities which prevailed from time to time over the many years of evolution’ (Raz, 1994, p. 281). Further, even those theorists who are sympathetic to the idea of coherence emphasise its limits and judge it to be a weak standard of justification. According to MacCormick (1984, p. 244), for example, coherence is ‘a relatively weak constraint’ that ‘determines only what we might call the “weak derivability” of a ruling or decision from the pre-existing law.’ To put it otherwise, coherence can secure a relatively ordered and structured normative environment, but it cannot by itself make sure that such ordering and structuring results in a fair and substantially correct system: there are other substantive values over and beyond coherence. But there are good reasons to consider an appeal to coherence in law perfectly sound. These reasons have to do with the importance of coherence as an ideal in law. First, coherence in law, though not an absolute value, is nevertheless fundamental because it connects up with the idea that a system has to make sense as a whole, and making sense as a whole is a precondition of that system’s intelligibility. Intelligibility is in turn a requirement essential to law, at least to the extent that law is understood as an institution whose function is to guide actions. Second, coherence in law seems desirable because what is coherent forms a rational unit rather than a chaotic assemblage of possibly inconsistent normative statements. This observation is made in Kress (1999, p. 536). Finally, coherence connects with another essential value of legal systems, the rule of law. This connection is noted in MacCormick and Summers (1991, p. 535). In setting down the conditions for the proper exercise of powers, the rule of law stipulates, among other things, constancy in the law. No such constancy can be assured in a normative system that fails to present a sufficient degree of coherence. Hence, to the extent that the argument from coherence favours system-wide interconnectedness, it finds a conceptual linkup with the fundamental ideal of the rule of law, coherence being a specific instantiation of the rule of law in the argumentative sphere. Therefore, the conclusion can be drawn, all things considered, that arguing from coherence is an acceptable way to settle disputes provided that we are aware of the above mentioned caveats and, in particular, of the nature of coherence as a weak standard of justification. Because coherence provides only a weak justification for a given standpoint, arguments from coherence cannot be used in isolation, but only as complementary reasons to be adduced in combination with other argumentative structures. Hence, a defence of a standpoint grounded exclusively on an argument from coherence would merely yield a partial justification. Much of the reason why it is open to question whether the argument from coherence can legitimately be used in law is the interpretive discretion involved in this use. The argument from coherence incorporates symptomatic and pragmatic considerations. Symptomatic reasoning and pragmatic reasoning are both value laden and enable arguers to inject their own views into their arguing. On this see MacCormick (1983), among others. A defence of a standpoint supported by an argument from coherence will therefore involve evaluations. This feature does not necessarily make the argument from coherence a completely subjective and arbitrary form of reasoning, though. In deploying this undeniably evaluative form of argumentation, we will still be bound by legal standards as well as by values and criteria set out in the legal system: arguments from coherence can be tested against pre-established and widely recognised legal standards of justification. Arguing from coherence is then an activity open to rational scrutiny. Into this argumentation structure the goals and principles of a system can make their way. The appeal to the system’s goals and principles enables one to have greater leeway in making evaluations. For the goals and general principles found in legal systems are often expressed in vague and abstract terms. So if we are to determine what these goals and principles mean in concrete cases we will have to carry out discretionary activities that are not entirely rule-governed. Further, identifying legal goals and principles is often a difficult and tortuous task likely to give way to disagreement: even experienced lawyers can sincerely disagree over the criteria to be used to validate and identify legal goals and principles. This feature makes the argument from coherence debatable and a loose guide to the resolution of cases. 3.2 The appropriateness of the argument from coherence At the level of specific application in concrete situations, the foregoing analytic model of the argument from coherence and the general evaluative remarks introduced so far can be put as regulative ideals by which to assess specific appeals to this argument, judging in each case whether it is correct and complete, or whether we should change it in order to achieve the desired correctness and completeness. An example will make the point more vivid. If we look at the Court’s appeal to coherence again and assess it in the light of my model of argument from coherence, we will see that it is only partially adequate, failing to make explicit all the necessary argumentative steps: there is covered only the main level of argumentation as illustrated in the general form. This manner of proceeding makes the Court’s appeal to coherence recognisable as an argument from coherence, to be sure, but it does not make it a complete argument. The Court fails to explain the connection between the chosen solution and the subsystem with which that solution is argued to be coherent. Further, it is only in general and vague terms that the Court refers to the norms with which the chosen solution is found to be coherent. This approach has enabled the Court to enjoy greater discretion than that which normally comes with the argument from coherence. It is true that the argument from coherence is constitutively elusive and allows the arguer to make a creative contribution, but if the argument is deployed in its standard form it will restrict the Court’s discretion more severely than what we saw in the above mentioned case. Such a freer use of the argument from coherence raises the question as to whether the points made have been actually argued: as the fetters imposed by an argumentation structure fall away, the arguer drifts farther away from proper justification and approaches the realm of persuasion. Arguing becomes less and less a rational practice aimed at convincing an audience that there are good reasons in support of the chosen solution and resembles more and more an exercise in rhetorical persuasion. Assessing practical instances of the argument from coherence against an analytic model is not the full assessment required. It is also essential that we verify whether the instance under scrutiny actually exhibits all the elements it claims to exhibit. Thus, we will have to see whether the chosen solution makes a fit with the norms used in its support: we would therefore be testing here the relation of “parts fitting together”. If the relation does subsist (the parts do fit) we will then want to see whether there are other solutions that exhibit the same relation (in that they, too, fit with the set of norms involved or referred to). Obviously, absent this relationship (or any parts fitting), the specific argument would collapse. In contrast, if we have more than one solution making a good fit with the system referred to, the argument being assessed would still be valid, but not yet comprehensive enough. To give it the comprehensive form it needs, we have to go a step further and explain why we ought to choose this solution over the other, equally coherent, solutions found to exist. Lastly, we need to check for any inconsistencies between the solution supported by the argument we are making and other combinations of legal norms in a given system (i.e. a normative set different from that referred to in the argument) that may likewise prove relevant to the standpoint being defended. If we omit to check for such inconsistencies we run the risk of presenting a non-exhaustive argument in support of the proposed solution: when different sets of norms within the same system support different solutions, we will have to find additional reasons in support of the solution we are arguing for. Likewise when we point out the implications our chosen solution may carry. We need to ascertain that these implications are actually compatible with the legal system, and then that the argument we are advancing carries no other incompatible implications; further, if there is more than one solution carrying implications compatible with the legal system we will need to make the argument complete by sorting out which of these solutions is to be favoured over the others. 4. Conclusion The argument from coherence, though frequently used in legal practice, has not received much detailed analysis in legal theory. Here I undertook a critical analysis of the argument from coherence, using the pragma-dialectical theory of argumentation to show that the argument of coherence is a complex form of coordinative argumentation structured on various argumentative levels. I further brought out a distinction between two basic forms of this argument: in one use the argument from coherence occurs as a sequence of two symptomatic arguments; in the other use we have a main symptomatic argument supported by a subordinate pragmatic argument. This makes the argument from coherence a teleo-systemic argumentative canon, one that connects with a dynamic idea of system. From an evaluative point of view, I assessed whether the argument from coherence can be found acceptable as a tool for settling disputes and claimed that we can welcome this argumentative structure as sound provided that we are aware of the interpretative discretion its use implies. Finally, I illustrated how the model of the argument from coherence introduced here can be applied in critique to assess specific uses of this argument, checking for completeness and correctness. Discussing the analytical and normative features of the argument from coherence made it possible as well to bring out the advantages that come with the pragma-dialectical approach to legal argumentation. We can use this approach to gain a deeper understanding of the argument from coherence and hold it to a more careful scrutiny than that generally found in legal theory. Legal theorists fail to appreciate the two levels of argumentation present in arguments from coherence (each level having its specific nature – symptomatic or pragmatic) and tend to approach this argument as a unitary set. The pragma-dialectical approach, instead, brings to light two possible forms of the argument from coherence, showing how these are alike at the main level of argumentation but differ at the subordinate level. The pragma-dialectical theory of argumentation therefore has great explicatory power, serving as a sophisticated heuristic tool with which to understand the structure, the internal complexity, and variety of arguments from coherence. The systematic reconstruction carried out from the pragma-dialectical perspective is also a problem-spotting tool applicable to normative questions: we can use this tool to single out a number of critical steps in the argument from coherence. Evaluative considerations come into play in each such step. So there are certain checks to be done, for otherwise the argument would turn into an arbitrary practice, with the arguer’s idiosyncrasies weighting more than rational deliberation. We need to identify these steps and look at them carefully when assessing the general forms as well as specific instances of an argumentative structure. One cannot overemphasise how much an argument’s scope and limits depend on its evaluative steps. But after spotting these steps we need to handle them. Thus, if different evaluations, and hence different choices are possible, we will have to decide which of them is best. In this process we may have to balance competing values, arriving at a choice expressed in relative as well as absolute terms. However, we cannot weigh evaluations unless we have a strong normative model of argumentation with which to rank values. The pragma-dialectical approach will not take us so far. 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