The Arguments from Coherence: Analysis and Evaluation'(2005)

The Argument from Coherence: Analysis and Evaluation Stefano Bertea* 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.1 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 show up the importance of coherence as an ideal feature of law and as a regulative criterion of judicial argumentation.2 So coherence has become a popular topic in jurisprudence.3 The argument from coherence – the argumentative scheme 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 that 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. This undertaking * Marie Curie Fellow at the University of Edinburgh. Funding for this research has been provided by the European Community, under contract number HPMF-CT-2001-01171 of the Marie Curie Fellowship, Programme Human Potential. I wish to express my indebtedness to Zenon Bańkowski, Francesco Belvisi, Emilios Christodulidis and Eveline Feteris for their helpful remarks on previous drafts of this essay. Needless to say, the responsibility for the views expressed herein, as well as for any errors of form or content, rests solely with me. 1 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 (1991). 2 See in particular MacCormick (1994, 152-194). 3 Among the legal theorists who recently have dealt with coherence are Levenbook (1984), Dworkin (1986, 164-275), Alexy and Peczenik (1990), Hurley (1990), Peczenik (1990), Villa (1990), Zaccaria (1990), Alexy (1998), Peczenik (1998), Rabinowicz (1998), Rodriguez-Blanco (2001), Schiavello (2001), and Soriano (2003). A critical approach to the role of coherence in law is endorsed by Raz (1994) and Kress (1999). 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 one hand, I will be evaluating this argumentative scheme and setting out the premises on which basis to understand the degree of discretion involved in appeals to coherence in law. This essay is therefore to be understood as primarily an investigation into a particular method by which to justify a legal standpoint. But my concern here is with theory, too, not just with technique, in that the critical analysis of argumentative schemes and methods will be assessed by their ability to enable a control over adjudication. In other words, the need to follow a given method of justification is understood as a limit to the judge’s discretion in settling disputes. In dealing with cases where no legal rules are directly applicable, such that a straightforward application of pre-existing legal texts and other formal criteria set out in positive law is not a viable option, judges enjoy a degree of argumentative freedom. But in these cases especially, the duty to use a pre-established method can impose significant bounds on the otherwise unfettered discretion of decision-makers. This drawing of lines makes it so that, however discretional decision-making activities may be, they are never wholly arbitrary or irrational: a method entails that, with the aids of rational tools, even forms of reasoning which are not completely rule-bound can be made to follow a course, and that even in absence of positive rules, legal decisions will not rest entirely on acts of will. Thus, in the perspective endorsed in this study, the analysis and evaluation of legal argumentation schemes will be considered part of a broader attempt to understand decision-making activities and subject them to rational control. Proceeding on these general premises, I will introduce the notion of coherence apparently at play in the argument under review, drawing on the contributions of different legal theorists to work out the many facets of coherence. I will then shift my focus to the use of coherence in adjudication and present a critical analysis of the argument from coherence, showing that it helps, in studying this argumentation scheme, to make use of the pragma-dialectical approach developed by the Amsterdam School of argumentation theory. Having introduced the basics of this approach, I will bring it to bear in analysing and evaluating the argument from coherence, exploring this argument both in general terms and with reference to some concrete examples. This analysis and exploration will become the basis on which argue that we can arrive at a comprehensive 2 understanding of the argument from coherence by integrating the treatment of coherence found in jurisprudence with that found in argumentation theory. 2. Context and definition The argument from coherence is conceptually related to the notion of coherence. Coherence is an inherently elusive and slippery concept that in recent years has attracted the attention of several legal theorists. We owe it to their efforts if we now have a better understanding of the nature, scope, and limits of this notion. Hence, the legal theorists’ treatment of coherence will give us a head start into a study of the argument from coherence.4 While there is wide agreement among contemporary legal theorists on the characterisation of coherence in the negative as lack of inconsistencies, it is still a question how coherence might be defined in positive terms. Coherence is generally held to be something 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,” “making sense as a whole,” “cohesion,” “consonance,” and “speaking with one voice.”5 A coherent set might therefore be described as a “tightly knit unit” (Peczenik 1989, 159). Which makes coherence a sort of entailment, a “kind of internal interconnectedness,” a “plausible connection” that is not linear and asymmetrical, but circular and symmetrical: the elements of a coherent structure are mutually supporting and reinforcing.6 Coherence is argued on this basis to be a form of supportive rationality.7 These definitions allow for further internal distinctions among types of coherence. An important distinction is that between epistemic and constitutive coherence. 4 It should be noted, here, by way of disclaimer, that this section is limited in scope to the argument from coherence (rather than to the concept of coherence). Therefore, only those contributions will be considered that impact directly on the definition and characterisation of the argument from coherence. So the reader should not expect this to be anything like a comprehensive and exhaustive introduction to coherence. 5 Coherence is associated with the idea of “making sense as a whole” and “hanging together” in MacCormick (1984, 235), with “cohesion” in Zaccaria (1990, 269), and with “consonance” in Villa (1990, 433). The expression “speaking with a voice” is used by Dworkin (1986, 165) in his treatment of integrity. 6 These expressions are used by Levenbook (1984, 362) and Villa (1990, 433) respectively. On the circularity of coherence links, see Alexy and Peczenik (1990, 132-139) and Raz (1994, 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. 7 On supportive rationality, see Peczenik (1990, 279-280). 3 Epistemic coherence is a condition of justified beliefs; constitutive coherence is a criterion of either correctness or truth.8 The object of constitutive coherence considerations can be either facts or norms. Following MacCormick (1984, 235), I will call “narrative coherence” the kind used in “drawing inferences of fact from evidentiary facts,” and “normative coherence” the kind used in relation to norms. Normative coherence applies to points of law rather than to matters of fact. In law, it can apply to a normative system or to reasoning with norms. When applied to a normative system, coherence is considered a feature, actual or ideal, of that system, and is therefore a systemic notion: a legal system is coherent if its components fit together, either all of them (global systemic coherence) or a subpart (in which case we have local systemic coherence).9 Normative coherence can also be used in legal reasoning to evaluate the arguments put forward in justifying single decisions; that is, to assess whether each of the arguments adduced in support of a specific decision is coherent with the others, or again whether a given ruling falls in line with the fundamental principles of a legal system. Here, coherence is predicated of rulings: a decision is considered correct if it coheres with the rest of the system, the rest of the system being understood as the norms of a specific legal branch (local adjudicative coherence) or, alternatively, as all the norms in force in a given legal order (global adjudicative coherence). In this role coherence function as a normative criterion: to accept coherence as a standard of adjudication is to claim that judges should follow the letter of the law only to the extent that the coherence of the system is not thereby jeopardised; otherwise, it is the spirit of the law that must be followed, and the law must so be extended as to preserve coherence within the system. Coherence as a criterion of adjudication brings us very close to the argument from coherence. This can be defined as the interpretive canon enabling one to establish and justify a specific standpoint by invoking the need to contribute to, and to preserve, the coherence – namely, the intelligibility and internal connectedness – of the system as a whole. Coherent approaches to adjudication can be more or less imperialistic. An extreme (and hardly acceptable) position in this regard is the thesis that a ruling’s coherence with the system is a necessary and sufficient condition for that ruling to be justified. Here, 8 The distinction is drawn in these terms by Raz (1994, 263), among others. On the differences between global (or system-wide) and local (or area-specific) coherence, and the problems inherent in the former, see Levenbook (1984, 367-374). 9 4 adjudication is reduced to a test of coherence and coherence is considered a strong standard of justification, a standard that provides the one right answer to each and every case. Also, coherence is viewed as a specific instance of a wider effort to reduce complexity and even find a single principle whose application provides a clear and definitive solution to all legal dilemmas (monistic conception).10 A more moderate view is that while a ruling needs to be coherent to be correct, there are standards in addition to coherence that come into play in rational justification. Showing a ruling to be coherent with other components of a normative system is only one step towards justification. This makes coherence a weak standard of justification, since adjudication, it is argued, should not be based on coherence alone, but should take into account other criteria as well.11 Adjudication is not about finding the most general and abstract principle, the one that justifies the others; it is rather a balancing of different criteria among which no preset relation of priority exists. Further, there is no special connection between coherence and unity: the coherence test has nothing to do with showing that many or all of a court’s decisions fall into the same line. Quite the contrary, “coherence in legal reasoning assists the judge in pursuing an ideal: to make sense of the diversity of law.”12 In other words, to appeal to coherence is to take pluralism seriously and strive to impart an order to a plural entity, making it intelligible without denying its multiple nature. Therefore, coherence does not commit us to ignoring the law’s complexity or to espousing an unrealistic ideal of a tensionless legal order. 3. Rational reconstruction It will be helpful, in providing a rational reconstruction of the argument from coherence, to make use of the pragma-dialectical theory of argumentation. This approach, theorised by the Dutch argumentation theorists Frans van Eemeren and Rob Grootendorst, is not well known in the legal field. So in this section I will introduce its basics, before using it analyse and evaluate the argument from coherence. 10 The need to eliminate contingency and complexity as much as possible is constitutive of the very idea of law. So the aspiration to unity emerges in close association not only with coherence but also with the legal domain. When radicalised, however, this search for simplification, unity, and certainty becomes a false idol. On this see Bankowski (2001, 27-42). 11 As MacCormick (1984, 244) puts it, “coherence is a desirable ideal feature of a system of law. As such, however, it may compete with other ideal features of law.” 5 3.1 The pragma-dialectical approach The pragma-dialectical approach is a general theory of argumentation set out by van Eemeren and Grootendorst in the 1980s; more recently, other scholars of the Amsterdam School have applied it to the study of legal and political reasoning.13 The philosophical background of this approach is Grice’s conception of practical rationality and the theory of speech acts developed within analytic philosophy.14 Proceeding on these theoretical grounds, van Eemeren and Grootendorst present communication as a (complex) speech act and so a rational practice. Argumentation is one of the possible modalities of communication. Putting forward arguments means carrying out a number of speech acts, each governed by given rules and assigned a specific function in the resolution of a dispute. Thus, arguing for or against a standpoint is a rule-governed exchange of communicative moves aimed at subjecting that standpoint to a critical test. Accordingly, legal argumentation is a constellation of speech acts designed to solve a legal dispute. In this view, arguments are the specific moves that make a critical discussion possible. They are carried out by discussants in “justifying or refuting a standpoint in order to convince the interlocutor of the acceptability or unacceptability of that standpoint” (van Eemeren and Houtlosser 2002, 14). Establishing a conceptual connection between argumentation, on the one hand, and communication and discussions, on the other, is the first fundamental premise of van Eemeren’s and Grotendorst’s theory, the feature on account of which the theory can be said to be dialectical. The theory is complemented by another basic tenet, a pragmatic one: argumentation is considered a goal-oriented and instrumental action whose success come when the discussants are actually convinced of the soundness of the arguer’s standpoint. Hence, argumentation stops at the point where actual acceptance by other interlocutors is reached: a premise “is acceptable if it is by intersubjective agreement accepted as such by the parties” (van Eemeren and Houtlosser 2002, 20). It is in the 12 Soriano (2003, 302 original emphasis). Some of the works of this School that need mentioning are van Eemeren and Grootendorst (1984, 1987, 1988, and 1992), Feteris (1994, 1999 and 2002), Kloosterhuis (1994 and 2000), Plug (1996), and Jansen (1997). 14 In particular, see Austin (1962), Searle (1969), and Grice (1975 and 1991). 13 6 combination of the dialectical and the pragmatic dimension, van Eemeren and Grootendorst argue, that we can find the key to the idea of argumentation. From these premises the advocates of the pragma-dialectical approach derive a code of conduct for rational discussants, i.e. those subjects who are willing to act reasonably in a critical discussion.15 Stripped of technicalities “these rules acknowledge the right to put forward and cast doubt on a standpoint, the right and the obligation to defend a standpoint by means of argumentation, the right to maintain a standpoint which is successfully defended in accordance with shared starting points and evaluation methods, and the obligation to accept a standpoint which is defended in this way” (Feteris 1999, 165). The rationale behind these rules is that of a working together of conventional and functional considerations: the rules governing rational discussion may be standards which either are actually internalised and complied with by the discussants (conventional foundation) or prove to be suited to, and successful in, the resolution of disputes (functional foundation).16 This code of rules constitutes the basis for an analysis and evaluation of all the possible arguments put forward in actual discussions. Thus, the pragma-dialectical model plays both a heuristic role – enabling us to grasp the analytic structure of arguments – and a critical role, enabling us as well to understand the limits of arguments. In this, the model enables a rational reconstruction of arguments. 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 scheme for any given type of argument. Evaluation builds on analysis in order to determine whether the argumentative steps, singly considered, are consistent with the code of rules governing rational discussion. Evaluation is designed as well to identify which argumentative steps entail a recourse to 15 There is a complete list of these rules in van Eemeren and Grootendorst (1984, 151-175). By so relying on a combination of conventional and functional considerations the pragma-dialectical approach theorises a way out of the Münchhausen Trilemma. By this expression Albert (1975, 13) designates the problem of justifying the ultimate criteria of rationality. He finds that any attempt at such a justification will force a choice among three different but equally unacceptable options: entering into (a) an infinite regress or (b) a logical circle, or (c) breaking off the justification process at an arbitrary point. Prgma-dialecticians refuse these options and consider a standard rational when the discussants no longer 16 7 evaluative judgements and allow for room to manoeuvre. In the following sections, I will first analyse and then evaluate the argument from coherence. 3.2 Analysis: the scheme 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. A couple of examples will serve to introduce this argument in the form more frequently used in legal contexts. Both examples derive from the case-law of the European Court of Justice (hereinafter, the Court) and, in particular, from the field of juridical review. In the context of the European Community (hereinafter, the Community) the system of judicial review is laid out in articles 230234, 241, and 288 of the Treaty establishing the legal order of the Community (hereinafter, the Treaty). In these articles we find a legal regulation of judicial control on both the administrative and the normative acts carried out by Community institutions. The Treaty governs a number of actions, namely, the action for annulment, the action for failure to act, the plea for illegality, the preliminary ruling, and the action for damages in the event of non-contractual liability. But these provisions are quite basic and schematic. So the Court stepped forward several times to clarify them and fill their gaps, thereby shaping the Community law on judicial review. In providing these clarifications the Court often appealed to the notion of coherence. An aspect the Treaty fails to clarify is the attribution of the competence to rule on the validity of Community acts: does this competence pertain to the Court or to the national courts? Here we need to ensure the uniformity and unity of Community law and, at the same time, to take into account the need to guarantee the mutual autonomy and sovereignty of both the Community and its member states. The matter was considered in Case C-314/85 Firma Foto-Frost v. Hauptzollamt Lübeck ([1987] ECR 4199),17 where the Court had to decide whether national courts can review the validity of Community see the need for it to be justified. So justification stops at a certain point, to be sure, but a point which is far from arbitrary. 17 The plaintiff, an import-export wholesaler of photographic merchandise, had entered prismatic binoculars free of duty into Germany. The German authorities referred the case to the Commission, which took the view that this type of operations warrants a post-clearance recovery of import duties. The German authority therefore claimed payment from the plaintiff, and the plaintiff challenged the decision before the competent German court. In the course of these proceedings the Court was called upon to issue 8 acts. The Court based its decision on coherence considerations. Firstly, the Court invoked the notion of local systemic coherence and reconstructed the provisions on judicial remedies setting up “a complete system of legal remedies and procedure designed to permit the Court of Justice to review the legality of measures adopted by the institutions” (§ 16). This way a strong link was established among all the Treaty articles on judicial protection. Then, on this ground, the Court extended to the preliminaryruling proceedings a provision expressly dictated for the action for annulment, and solved the case by appealing to adjudicative coherence: “since article 173 [now 230] gives the Court exclusive jurisdiction to declare void an act of a Community institution, the coherence of the system requires that where the validity of a Community act is challenged before a national court the power to declare the act invalid must also be reserved to the Court of Justice” (§ 17). So the Court’s exclusive competence to rule on the validity of Community acts “is dictated by consideration of the necessary coherence of the system of judicial protection established by the Treaty” (§ 16). The second example of an argument from coherence is provided by Joined Cases C143/88 and C-92/89 Zuckerfabrik Süderithmarschen & Zuckerfabrik Soest ([1991] ECR I-415),18 where the question was decided how a national court should proceed when the legality of a measure based on Community acts is in disputed and urgency requires that a decision is taken before the alleged invalidity of the act is declared by the Court. 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,19 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 a preliminary ruling on the question whether the German court could itself subject the Commission’s decision to judicial review. 18 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. 19 The main conditions established by the Court are: 1) existence of serious doubts about the validity of the Community act; 2) urgent nature of the matter; 3) risk that the applicant suffers grave and irreparable harm as a result of a further delay in preventing the effects of the measure. 9 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). These examples of the Court’s case-law show that the appeals 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 is 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. But it can be transformed into a legal argument when the two implicit steps on which it rests are made explicit. First, if we are to transform a statement of coherence into an argument from coherence, we need a step that explains why the chosen solution is coherent with the given legal system. 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 first 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 precedents, rules, principles, and goals 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 implications that are (not) compatible with that system.” The addition of this implicit step, in either of its two versions, transforms a mere statement in an argument, meaning a statement 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. Second, invoking coherence means defending a standpoint by putting it into a wider context: in fact in deploying an argument from coherence we elaborate on the nature 10 and contents of a legal system. Thus, while linguistic considerations may find their way into the argument from coherence, we cannot understand this to be essentially a linguistic argument: its true nature is not linguistic but systemic. However, the established practice in most contemporary legal systems is to use arguments different from, and more elaborate than, the appeal to linguistic considerations only if the letter of the law is not clear enough or leads to a patently unacceptable solution. The need to follow the letter of the law whenever the law is perspicuously and unambiguously worded underlines some rules setting out the priorities among the arguments that can legitimately be used in legal contexts. These rules, in use within most contemporary legal systems, establish that linguistic arguments prevail upon systemic arguments, and the that these in turn prevail upon teleological arguments. In the words of MacCormick and Summers (1991, 530-531), “when the interpretative conditions for linguistic arguments are satisfied, these arguments should be tried out prior to consideration of any other arguments; one should move to considering systemic arguments only after a preliminary scrutiny of the output of linguistic ones, and only if there is some reason to doubt the satisfactoriness of linguistically derived interpretation; likewise, one should move to the teleological-evaluative arguments (if at all) only after scrutiny of the former two. ... This prima facie ordering seems to follow intelligibly from a principle of economy of interpretative effort.” These priority rules entail that when we argue for or against a standpoint by recourse to non-linguistic arguments, among others, we should mention that on such occasions it is necessary to proceed to a level of argumentation beyond the basic level, because no clear linguistic argument has been made. So in order to make the transition from a statement of coherence to a legal argument from coherence we should add a further argumentative step acknowledging the unavailability of linguistic arguments. This further step can be expressed by writing into the statement of coherence a qualification as follows: “a given solution is (not) required because, even though it is not directly dictated (prohibited) by the letter of the law, it is coherent with the given legal system.” This qualifying step is different from the additional step previously introduced: wile that step was a necessary argumentative move – for otherwise we could not enter the argumentative realm at all – this step is necessary for us to enter the specific domain of legal argumentation. In other words, this second step is essential, not from the argumentative point of view, but from the legal point of view: 11 in contemporary legal systems, no argument from coherence would be complete that fails to clarify its relationship with linguistic forms of argumentation. The second additional step is therefore more area-specific and contingent than the first. The addition of these two premises to the original statement imparts this form to the argument from coherence: “solution X is (not) required because, even though not directly dictated (prohibited) by the letter of the legal system S, X is (not) coherent with the system S since X fits (does not fit) well with a set of precedents Cs, rules Rs, principles Ps, and/or goals Gs which is part of the system S”. An alternative version of the argument from coherence is “solution X is (not) required because, even though not directly dictated (prohibited) by the letter of the legal system S, X is (not) coherent with the system S since X would carry certain implications Is which are (not) compatible with the system S”. These are the two basic forms of the argument from coherence. We can use pragma-dialectical conventions to represent these two argumentative schemes as follows. 12 Scheme A 1 Solution X is (not) required ↑ 1.1a & X is not directly dictated 1.1b X is (not) coherent with S (prohibited) by the letter of S ↑ 1.1b.1a & 1.1b.1b X fits (does not fit) well Cs, Rs, Ps, Gs are with a set of Cs, Rs, Ps, precedents, rules, and/or Gs principles and goals of S 13 Scheme B 1 Solution X is (not) required ↑ 1.1a & X is not directly dictated 1.1b X is (not) coherent with S (prohibited) by the letter of S ↑ 1.1b.1a & 1.1b.1b X would carry Is are (not) compatible certain Is with S This schematisation can help us bring out certain features of the argument from coherence. First, the tables show 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 twofold scheme of the argument from coherence we find one standpoint and a number of argumentative moves aimed at defending it.20 These argumentative moves stand at different argumentation levels. In both versions of the argument from coherence we have a main 20 The standpoint is: “solution X is (not) required”. The argumentative moves differ in part in the two schemes. In Scheme A they are “X is not directly dictated (prohibited) by the letter of the legal system S”; “X is (not) coherent with the system S”; “X fits (does not fit) well with a set of precedents Cs, rules Rs, principles Ps and/or goals Gs”; and “the set of Cs, Rs, Ps, and/or Gs is part of the system S”. In Scheme B the argumentative moves are “X is not directly dictated (prohibited) by the letter of the legal system S”; “X is (not) coherent with the system S”; “X would carry certain implications Is; and “Is are (not) compatible with system S”. 14 argument and a subordinate argument.21 So the defence of the standpoint is built layer after layer: the standpoint is supported by the main argument, which in turn is supported by another (subordinate) argument. Each of the arguments is composed of two premises making up a single attempt at defending the standpoint. Since the premises in this combination must be taken together to yield a conclusive defence, the argument from coherence is to be considered, in the pragma-dialectical terminology, a form of coordinative argumentation. Further, the general twofold scheme shows up the existence of an internal distinction between two different types of argument from coherence. In the first type, the argument from coherence is a combination of two analogical arguments. The analogical argument is a move “based on an argumentation scheme in which the acceptability of the premises is transferred to the conclusion by making it understood that there is a relation of analogy between what is stated in the argument and what is stated in the standpoint. The argumentation is presented as if there were a resemblance, an agreement, a likeness, a parallel, a correspondence or some other kind of similarity between that which is stated in the argument and that which is stated in the standpoint” (van Eemeren and Grootendorst 1992, 97). Thus, in Scheme A of the argument from coherence, the arguer will try to make her point (X) by showing that a relation of similarity and “fitting together” exists between X and S: we should opt for a given solution because it fits well with the system the solution will become a part of. Further, this relation of analogy is supported by another alleged affinity, that between X, on the one hand, and the set of Cs, Rs, Ps, and Gs, on the other. In Scheme B, by contrast, the argument from coherence is a combination of analogical and pragmatic argumentation. While at the main level of argumentation we find an appeal to the similarity between X and S, the justification at the subordinate level appeals to an effect produced by X or an implication of X. In the pragmadialectical theory, a pragmatic argument is a subtype of the argument based on a causal relation. In this type of argumentation “someone tries to convince by pointing out that 21 The main argument is “solution X is (not) required because, even though not directly dictated (prohibited) by the letter of legal system S, X is (not) coherent with the system S”. The subordinate arguments differ in the two schemes. In Scheme A we have the subordinate argument “X is (not) coherent with S because X fits (does not fit) well with a set of precedents Cs, rules Rs, principles Ps, and/or goals Gs which is part of the system S”. In Scheme B we have the subordinate argument “X is (not) coherent with the system S since X would carry certain implications Is which are (not) compatible with system S.” 15 something is instrumental to something else. This type of argumentation is based on an argumentation scheme in which the acceptability of the premises is transferred to the conclusion by making it understood that there is a relation of causality between the argument and the standpoint. The argumentation is presented as if what is stated in the argumentation is a means to, a way to, an instrument for or some other kind of causative factor for the standpoint, or vice versa.”22 In turn, the argument based on a causal relation is one of the three main different types of sound argumentation, along with argumentation based on a symptomatic relation and argumentation based on a relation of analogy.23 Therefore, the subordinate level makes this version of the argument from coherence radically different from the one previously considered (as Scheme 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” (Bankowski and MacCormick 1991, 366). Which means that when we set out to defend a standpoint by context-establishing argumentation, we will have to take into account the system where a text is located and see how the two fit, that is, how the text (decision) fits in with the system, either the entire system or one of its parts: “these arguments locate the text under dispute in its setting within the legal system, first, as against the other parts of the same Act, secondly as against other pieces of legislation (if any) which, together with the present Act, form a single statutory scheme, and finally in the general relation of the relevant whole to the bodies of statutory and/or common law which make up ‘branches’ of law such as ‘family law’, ‘landlord and tenant’, ‘property’, ‘succession’, or the like” (Bankowski and MacCormick 1991, 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 is meant a combination of teleological and systemic arguments. In fact the purpose and the position of a legal provision can find themselves intertwined. When that happens, our defence of a standpoint will have to 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 22 Van Eemeren and Grootendorst (1992, 97 original emphasis). 16 teleological and contextual considerations come into play and combine to justify a decision: when we argue from coherence we bring into play the purposes of a norm by inferring them from the norm’s placement within the system as well as from its relationship with other norms in the system. The connection between the argument from coherence and the purposes of an order brings out the dynamic nature of this argumentative scheme. Dynamic arguments provide a “moving picture” of the system referred to. A system is conceived of as a set that changes over time, its components each relating to the others. Bengoetxea (1993, 252) finds that the relevance of dynamic arguments comes “from the value-laden conception that norms are to be interpreted in such a way that they function effectively (functional arguments), or from the objectives which some norms of the legal order either formulate explicitly or are seen as pursuing (teleological arguments), and finally from the consequences to which the proposed interpretation for those norms leads (consequentialist arguments).” Finally, we can see from the analysis just developed that the appeal to coherence is designed to arrive at a preferred solution selected among a number of alternatives. The argument from coherence gives us a criterion of choice among competing solutions, directing us to go with the solution that best coheres with a given (sub)system. We can express this idea by saying that the argument from coherence is a second-level argument – an argument that we use to compare alternative solutions arrived at by way of other arguments. In other words, the argument from coherence is to be considered, not a selfsufficient and exhaustive source of justification, but a tool suitable for revisiting the results yielded by other argumentative techniques.24 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 of the decision-making authorities’ duty to be faithful to pre-existing law. Which makes this a 23 On these types of argumentation, see van Eemeren and Grootendorst (1992, 94-102). This aspect is underscored in La Torre, Pattaro and Taruffo (1991, 232) and analysed in greater detail in Velluzzi (2002, 62-63). 24 17 backward-looking, conservative, argument that places emphasis on the past and on the obligation to adhere to the law enacted beforehand when legal disputes are to be solved.25 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.26 Another distinction internal to this argumentation scheme 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.27 3.3 Evaluation: the limits 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 scheme is allowed (i.e. whether it is structurally correct and substantially sound) and under what conditions it 25 As Raz (1994, 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 (1984, 359). Concrete instances of backward-looking arguments from coherence are present in the Court’s case-law. See, for example, Case C-294/83 Parti Ecologiste “Les Verts” v. Parliament ([1986] ECR 1399), Case C-314/85 Firma Foto-Frost v. Hauptzollamt Lübeck ([1987] ECR 4199), and Case C-302/87 Parliament v. Council (Comitology) ([1988] ECR 5615). 26 The Court made forward-looking coherence considerations in Case C-22/70 Commission v. Council (ERTA) ([1971] ECR 263), Case C-314/85 Firma Foto-Frost v. Hauptzollamt Lübeck ([1987] ECR 4199), Case C-70/88 Parliament v. Council ([1990] ECR I-2041), and C-316/91 Parliament v. Council (Lomé Convention) ([1994] ECR I-6250). 27 The Court used local arguments from coherence in Case C-314/85 Firma Foto-Frost v. Hauptzollamt Lübeck ([1987] ECR 4199), Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderithmarschen & Zuckerfabrik Soest ([1991] ECR I-415), C-316/91 Parliament v. Council (Lomé Convention) ([1994] ECR I-6250), and Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH v. Bundesamt für Ernährung und Forstwirtschaft ([1995] ECR I-3761). Global arguments from coherence are present in Case C-22/70 Commission v. Council (ERTA) ([1971] ECR 263), and Case C-294/83 Parti Ecologiste “Les Verts” v. Parliament ([1986] ECR 1399). 18 can be considered a legitimate defence of a standpoint. At a more specific level, one should ask whether the general argumentative scheme chosen for the case at hand was correct, and then whether it was correctly applied. The more specific enquiry is as important as the general one, since even a generally sound argumentative scheme can turn out to be inappropriate in particular circumstances. In this section, I will consider in turn these evaluative dimensions: first the question whether the argument from coherence can be considered a valid and admissible argumentative scheme, and then the questions that may come to light as this argument gets applied to concrete cases. In general terms, the argument from coherence can be said to be structurally composed of a coupling of argumentation schemes: an analogical scheme plus either an analogical or a pragmatic one. Singularly taken, each of these arguments is widely applied in law and deemed perfectly sound: both arguments from analogy and consequentialist 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. None of these argumentation schemes is logically binding, to be sure. But that is not likely to cause any trouble, since law is a practical realm where informal, or dialectical, reasoning plays as important a role as formal, or logical, argumentation.28 Hence, 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, 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, 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, 244), for example, 28 The need of integrating logical and dialectical approaches is the core thesis underlying a number of works by legal argumentation theorists such as Aarnio, Alexy and Peczenik (1981, 266-270), Aarnio (1987), Alexy (1989), Peczenik (1989), Wróblewski (1992), and MacCormick (1994) 19 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 or a substantially correct system: there are other substantive values over and beyond coherence. But then 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 purposing 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.29 Third, as even Kress (1999, 536) concedes, despite his critical stance toward the ideal of coherence in law, “the idea that law is a seamless web, that it is holistic, that precedents have a gravitational force throughout the law, that argument by analogy has an especial significance in law, and the principle that all are equal under the law” enable coherence to have a special claim on us. Finally, coherence connects with another essential value of legal systems, the rule of law.30 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 coherence, 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 argumentation. The conclusion can be drawn, all things considered, that arguing from coherence is an acceptable way to settle disputes, but only if we proceed within given limits and caveats. Thus, we should not fail to take into account the analogical nature of the argument from coherence. As a form of analogy, the argument from coherence should not be allowed in legal contexts where personal liability is the principle to refer to, as in 29 This observation is made in Kress (1999, 536). 20 criminal law. In fact, most legal system disallow recourse to analogy in these contexts, since that can result in an infringement of the fundamental right of the accused to be tried for only those acts that have been made explicitly unlawful by previously enacted law. This prohibition should extend to the argument from coherence, that in consideration of this argument’s analogical nature. There is, further, a limitation due to 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 schemes. Hence, a defence of a standpoint grounded exclusively on an argument from coherence would merely yield 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 is an analogical and pragmatic argument. Analogical reasoning and pragmatic reasoning are both value laden and enable arguers to inject their own views into their arguing.31 A defence of a standpoint supported by an argument from coherence will therefore carry evaluative considerations. This feature does not necessarily make the argument from coherence a completely subjective and arbitrary form of reasoning, though. In deploying this undeniably evaluative argumentation scheme, we will still be bound by legal standards and to values and criteria set out in the legal system: arguments from coherence can be tested against preestablished and widely recognised legal standards of justification. Arguing from coherence is then an activity open to rational scrutiny. In this argumentation scheme, an appeal to the system’s goals and principles enables one to have greater leeway in making evaluations. In fact 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, 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. It is this feature – the goals and 30 31 This connection is noted in MacCormick and Summers (1991, 535). On this, see MacCormick (1983), among others. 21 principles that can make their way into the argument from coherence – that makes this argumentative scheme debatable and a loose guide to the resolution of cases. Another critical aspect of the argument from coherence is its incorporation of such terms as “coherence,” “fit,” and “compatible.” From a semantic point of view, “coherence,” “fit,” and “compatible” are loose, vague, and possibly ambiguous terms whose reference is often unclear. In default of an agreement on the precise meaning of these terms, the same imprecision, vagueness, obscurity, and ambiguity gets relayed to the argument from coherence and ends up characterising it as a whole. This situation makes even worse the problem inherent in the relation of things “fitting together” as well as that of their compatibility. These two relations are not entirely reducible to logical links, but rather involve a weaker and vaguer kind of entailment. We cannot say exactly what it means for a number of mutually supporting and reinforcing elements to “fit together,” so we cannot express this link in formal terms, either.32 What we can do is to describe this kind of connection in narrative terms. Whether this need to appeal to narrative notions detracts or not from the argument from coherence will depend on our beliefs about law and legal method. Loose argumentation schemes are bound to appear inadequate from a “logical” approach to law, an approach where logical inferences (and not dialectical reasoning) are considered the best way to describe normative systems and justify legal rulings. By contrast, such loose argumentation will look perfectly sound from a “narrative” approach modelled on the practice of storytelling (rather than demonstrating truths) as the best way to study and handle the law. This narrative perspective has made possible some advances in recent years, to that extent enabling informal argumentative schemes to find recognition as legitimate tools in law, in theory and practice alike. But this recognition should not obscure the fact that arguing from coherence is a discretional, albeit not arbitrary, activity. This openness to the realm of value-laden judgements – though unavoidable and structurally necessary –is not without risks, and it may even come at the cost of a loss in legal certainty and the protection of individual rights. At the level of specific application, the twofold scheme 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 the same argument, judging in each case 22 whether the argument 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 appeals to coherence again and assess them in the light of my model of argument from coherence, we will see that they are 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 scheme. This manner of proceeding makes the Court’s appeals to coherence recognisable as arguments from coherence, to be sure, but it does not make them complete arguments. The Court fails to explain the connection between the chosen solution and the subsystem with which that solution is argued to be coherent. That is particularly true in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderithmarschen & Zuckerfabrik Soest ([1991] ECR I-415), where 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 and complete form it will bind more deeply than the Court has been in the above mentioned cases. Such a freer use of the argument from coherence raises the question whether the arguer actually argued the points made: as the limits imposed by an argumentation scheme fall away, the arguer drifts farther away from proper justification and approaches the realm of rhetoric. Arguing becomes less and less a 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. Comparing practical instances of the argument from coherence against the twofold general scheme 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 fits) 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 (of any 32 Indeed, a few attempts to provide a formal definition of coherence have been done, but they remained 23 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 complete. To give it the complete form it needs, we have to go a further step and explain why we ought to choose this solution over the other, equally coherent, solutions found to exist. We also need to make sure, when arguing from coherence, that the norms the chosen solution refers to are in fact recognised as legal norms, in that they belong to the legal system. In making this judgement we can rely on the criteria of validity set out in legal system in question, which will provide us with the relevant information. In short, the norms we refer to need to be put to a test of institutional validity. This step, that understandably in actual practices of judicial reasoning is often implicit, is needed if we are to preserve the legal nature of the argument we are carrying out. 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 an incomplete argument in support of the proposed solution: if different sets of norm within the same system support different solutions, we will have to find additional reasons in support of the one solution we are arguing for. Likewise when we point out the implications our chosen solution may carry: here 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. The close connection between the argument from coherence and the notion of coherence suggested that I begin by introducing the way the notion is treated in legal theory. I pointed out here how relatively isolated enterprises. See, for example, Levenbook (1984, 361-365). 24 coherence can be used as a normative standard in legal reasoning, enabling us to defend a standpoint at least in a weak sense. I then 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 argumentation 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 analogical arguments; in the other use we have a main analogical argument supported by a subordinate pragmatic argument. Which 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 this judgement depends on the conception we espouse of the role played by coherence in law. In general, we can welcome this argumentative scheme as sound and fully acceptable provided that we are aware of the interpretative discretion its use implies: for one thing, analogical reasoning and pragmatic reasoning are both value laden and carry evaluative considerations; for another thing, the kinds of connections the argument from coherence established (between a part and a system) are weaker than the connections of logic. Finally, I illustrated how the general scheme of the argument from coherence 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 pragmadialectical 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 fails to appreciate the two levels of argumentation present in arguments from coherence (each level having its specific nature – analogical or pragmatic) and tends to approach this argument as a unitary set. The pragma-dialectical approach, instead, brings to light the two models on which basis the argument from coherence proceeds, showing how these are alike at the main level of argumentation but differ at the subordinate level. The pragma-dialectical theory of legal argumentation therefore has greater explicatory power, serving as a 25 sophisticated heuristic tool with which to understand the structure, the internal complexity, and variety of arguments from coherence. The systematic reconstruction provided by the pragma-dialectical model 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 form as well as specific instances of an argumentative scheme. 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 these is best. In this process we may have to balance principles and 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 and principles. The pragma-dialectical approach will not take us so far.33 The model it gives us is powerful enough to detect the evaluative steps involved, but not so powerful as to enable normative considerations: we cannot turn to it for guidelines that we might apply, in general or to specific cases, when we have colliding evaluations requiring a choice. This limitation of the pragma-dialectical model is partly due to its pragmatic nature: its normative model incorporates the forms of argument that prove in practice to be more effective in solving disputes. This drawback is no reason to dismiss the pragma-dialectical approach as useless when it comes to the critical analysis of arguments. It rather suggests that, when normative questions are the matter, we need to complement the model with other contributions coming from legal argumentation and political theory. References Aarnio, A. 1987. The Rational as Reasonable. A Treatise on Legal Justification. Dordrecht: Reidel. 33 By contrast, an interesting effort in this direction can be found in Alexy (2002). 26 Aarnio, A., R. Alexy and A. Peczenik 1981. The Foundation of Legal Reasoning. Rechtstheorie 21, 133-158, 259-273, 423-448. Alexy R. and A. Peczenik 1990. The Concept of Coherence and Its Significance for Discursive Rationality. Ratio Juris 3, 130-147. Alexy, R. 1989. A Theory of Legal Argumentation (1978). Oxford: Clarendon. Alexy, R. 1998. Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion. In A. Aarnio et alt. (eds.). On Coherence Theory of Law. Lund: Juristfoerlaget, 41-49. Alexy, R. 2002. A Theory of Constitutional Rights (1986). Oxford: Oxford University Press. Austin, J.L. 1962. How to Do Things with Words. Oxford: Clarendon. Bańkowski, Z. 2001. Living Lawfully. Dordrecht: Kluwer. Dworkin, R. 1986. Law’s Empire. London: Fontana Press. Eemeren van F. and P. Houtlosser 2002. Strategic Maneuvering with the Burden of Proof. In F. van Eemeren (ed.). Advances in Pragma-Dialectics. Amsterdam: Sic Sat, 13-28. Eemeren van F. and R. Grootendorst 1987. Fallacies in Pragma-Dialectical Perspective. Argumentation 1, 283-301. Eemeren van F. and R. Grootendorst 1992. Argumentation, Communication and Fallacies. A Pragma-Dialectical Perspective. Hilllsdale NJ: Erlbaum. Eemeren, van F. and R. Grootendorst 1988. Rationale for a Pragma-Dialectical Perspective. Argumentation 2, 271-291. Eemeren, van F. and R. Grootendorst. 1984. Speech Acts in Argumentative Discussions. Dordrecht: Foris. Feteris, E. 1994. Rationality in Legal Discussions. In F. van Eemeren and R. Grootendorst (eds.). Studies in Pragma-Dialectics. Amsterdam: Sic Sat, 29-40. Feteris, E. 1999. Fundamentals of Legal Argumentation. Dordrecht: Kluwer. Feteris, E. 2002. A Pragma-Dialectical Approach of the Analysis and Evaluation of Pragmatic Argumentation in a Legal Context. Argumentation 16: 349-367. Grice, H.P. 1975. Logic and Conversation. In P. Cole and J.L. Morgan (eds.). Syntax and Semantics 3: Speech Acts. London: Academic Press, 41-58. 27 Grice, H.P. 1991. Studies in the Way of Words. Cambridge, Mass.: Harvard University Press. Hurley, S. 1990. Coherence, Hypothetical Cases, and Precedent. Oxford Journal of Legal Studies 10, 221-251. Jansen, H. 1997. Vooorwaarden voor aanvaardbare a contrario argumentatie. In E. Feteris et alt. (eds.). Op geode gronden. Nijmegen: Ars Aequi. Kloosterhuis, H. 1994. Analysing Analogy Argumentation in Judicial Decisions. In F. van Eemeren and R. Grootendorst (eds.). Studies in Pragma-Dialectics. Amsterdam: Sic Sat, 238-245. Kloosterhuis, H. 2000. Analogy Argumentation in Law: A Dialectical Perspective. Artificial Intelligence and Law 8, 173-187. Kress, K. 1999. Coherence. In D. Patterson (ed.). A Company to Philosophy of Law and Legal Theory. Oxford: Blackwell, 533-552. La Torre M., E. Pattaro and M. Taruffo 1991. Statutory Interpretation in Italy. In MacCormick N. and R. Summers (eds.). Interpreting Statutes. Aldershot: Dartmouth, 213-256. Levenbook, B. 1984. The Role of Coherence in Legal Reasoning. Law and Philosophy 3, 355-374. MacCormick, N. 1983. On Legal Decision and Their Consequences: From Dewey to Dworkin. New York University Law Review: 239-258. MacCormick, N. 1984. Coherence in Legal Justification. In A. Peczenik (ed.). Theory of Legal Science. Dordrecht: Reidel, 235-251. MacCormick, N. 1994. Legal Reasoning and Legal Theory (1978). Oxford: Clarendon. MacCormick N. and R. Summers (eds.). 1991. Interpreting Statutes. Aldershot: Dartmouth. MacCormick N. and R. Summers 1991. Interpretation and Justification. In MacCormick N. and R. Summers (eds.). 1991. Interpreting Statutes. Aldershot: Dartmouth, 511-544. Peczenik, A. 1989. On Law and Reason. Dordrecht: Reidel. Peczenik, A. 1990. Coherence, Truth and Rightness in the Law. In P. Nerhot (ed.). Law, Interpretation and Reality. Dordrecht: Kluwer, 275-309. Peczenik, A. 1998. A Coherence Theory of Juristic Knowledge. A. Aarnio et alt. (eds.). On Coherence Theory of Law. Lund: Juristfoerlaget, 7-16. 28 Plug, J. 1996. Complex Argumentation in Judicial Decisions. Analysing Conflicting Arguments. In D.M. Gabbay and H.J. Ohlbach (eds.). Proceedings of the International Conference on Formal and Applied Practical Reasoning. Berlin: Springer, 464-479. Rabinowicz, W. 1998. Peczenik’s Passionate Reason. A. Aarnio et alt. (eds.). On Coherence Theory of Law. Lund: Juristfoerlaget, 17-27. Raz, J. 1994. The Relevance of Coherence. In J. Raz. Ethics in the Public Domain. Essays in the Morality of Law and Politics. Oxford: Clarendon, 277-325. Rodriguez-Blanco, V. 2001. A Revision of the Constitutive and Epistemic Coherence Theories of Law. Ratio Juris 14, 212-232. Schiavello, A. 2001. On “Coherence” and “Law”: An Analysis of Different Models. Ratio Juris 14, 233-243. Searle, J. 1969. Speech Acts. Cambridge: Cambridge University Press. Soriano, L.M. 2003. A Modest Notion of Coherence in Legal Reasoning. A Model for the European Court of Justice. Ratio Juris 16, 296-323. Velluzzi, V. 2002. Interpretazione sistematica e prassi giurisprudenziale. Turin: Giappichelli. Villa, V. 1990. Normative Coherence and Epistemological Presuppositions of Justification. In P. Nerhot (ed.). Law, Interpretation and Reality. Dordrecht: Kluwer, 431-455. Wróblewski, J. 1992. The Judicial Application of Law. Dordrecht: Kluwer. Zaccaria, G. 1990, Hermeneutics and Narrative Comprehension. In P. Nerhot (ed.). Law, Interpretation and Reality. Dordrecht: Kluwer, 251-274. 29