Coherence

Ratio Juris. Vol. 16 No.
3 September 2003 (296–323)
A Modest Notion of Coherence in

Legal Reasoning. A Model for the
European Court of Justice*
LEONOR MORAL SORIANO**
Abstract. The aim of this article is to propose a theoretical theme to explain coher-
ence in legal reasoning. The main argument that this paper wants to put forward is
that theories of coherence in the legal system should be differentiated from theories
of coherence in legal reasoning. These focus on arguments, and on how the given
arguments are connected. In particular, the notion of coherence in legal reasoning
proposed here is a modest one. The article applies this theme to the case-law of the
European Court of Justice in environmental matters. This provides an example of
how to deal with conflicts between incommensurable goods, and how to promote
coherence by justifying decisions.
Simple folk have an advantage over the learned, who often get lost in the search
for general laws. They often have the intuition of the individual. But this
intuition by itself is insufficient. (Eco, The Name of the Rose)1
Introduction
The aim of this article is twofold. First, it proposes a theoretical theme to
explain coherence in legal reasoning; second, it applies this theme to the
case-law of the European Court of Justice in environmental matters.
The main argument that this paper intends to put forward is that theories
of coherence in the legal system should be differentiated from theories of
coherence in legal reasoning. Theories of coherence in the legal system focus
* Most sincere thanks to Zenon Bankowski and Kevin Walton for extremely useful comments
and corrections. All remaining mistakes are my own responsibility.
** This paper was written during my stay at the Centre for Law and Society, University of
Edinburgh, as Marie Curie Research Fellow between 1998 and 2000.
1
Translated from the Italian original: “I semplici hanno qualcosa di più dei dottori, che spesso
si perdono alla ricerca di leggi generalissime. Essi hanno l’intuizione dell’individuale. Ma
questa intuizione da sola non basta.”
© Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
Coherence in Legal Reasoning 297
on fitting a decision into the legal system, and on the fitting together of all
components of the legal system.2 Theories of coherence in legal reasoning
focus on the arguments, and on how the given arguments are connected.
This paper argues that prior to asking whether the rule contained in a deci-
sion coheres with the legal system, one should ask whether the reasoning
itself coheres. Legal reasoning, and in particular legal adjudication, is a
matter of supporting judicial decisions by arguments or reasons which
cumulate,3 form chains,4 or form cumulation-nets;5 theories of coherence in
adjudication focus on how to form coherent cumulations, chains, or nets of
reasons.
In particular, the notion of coherence in legal reasoning proposed here is
a modest one. It is modest in different senses. It does not aim (like global
notions of coherence) at identifying what the law is according to a princi-
ple, or set of principles. It rather aims at recognizing the value pluralism of
a legal system, that is, the idea that different and incommensurable values
belong to and collide within the legal system. The way of dealing with value
pluralism is modest: arguments; and so is the notion of coherence, for it aims
at providing tools to elaborate coherent supportive structures of arguments,
rather than at providing a definitive answer.
This paper also analyses several European Court of Justice (the Court)
decisions on environmental matters, which concern the conflict between two
incommensurable goods, namely, environmental protection and economic
freedoms. Incommensurable goods such as the environment and economic
freedoms cannot be measured, that is, they “cannot be aligned along a single
metric” (Sunstein 1997, 238). However, the absence of a metric does not
imply that conflicts between incommensurable goods cannot be treated in a
fair and rational way. Choices can be made; the question is how can incom-
mensurable goods be evaluated and choices be made without their being
irrational or arbitrary (for no metric is supplied). Arguments, i.e., reasons
are the main tool to justify rationally choices between incommensurable
goods. Here, the modest notion of coherence is needed to evaluate how far
the Court complies with the theoretical theme this paper proposes, and to
evaluate how coherent its legal reasoning is. The conclusions show that
attempts to generate coherence by making all decisions fit into a single line,
namely integration, and the criticisms of judicial activism of the Court are
2
Coherence in the legal system focuses on fitting together all components of the legal system.
Narrative notions of coherence in the legal system (Esser, Dworkin) are currently very popular,
partly because narrativeness is taking over logical inferences (deriving norms from a superior
rule) as the way to both describing and/or justifying legal systems. In addition, telling (coher-
ent) stories, rather than demonstrating truths, is a dominant feature of our current scientific
paradigm, especially since we understand telling stories as an activity of both reproducing
(past rules) and creating (new rules).
3
The reasons which justify ORx are r1 and r2 and r3 and rn.
4
The reasons which justify ORx are r1 because of p1.
5
The reasons which justify ORx are r1 because p1 and r2 because p1 and p2.
© Blackwell Publishing Ltd 2003.

298 Leonor Moral Soriano
based on a poor understanding of coherence in legal reasoning, or at worse,

the lack of such understanding.
1 Claiming Coherence for the European Court of Justice

Justice Edward, defending the European Court of Justice against the accu-
sation of judicial activism, points out that “the judge’s role cannot be con-
fined to that of providing a technocratic literal interpretation of texts
produced by others. [. . .] In a system based on case-law the judge must
proceed from one case to another seeking, as points come up for decision,
to make the legal system consistent, coherent, workable, and effective”
(Edward 1996, 66–7). Indeed, many of the accusations of judicial activism
addressed to the Court are founded on a poor understanding of the content
of legal reasoning6 and, in particular, of the role of coherence in the legal
system and legal reasoning. In this sense, this paper aims to offer a notion
of coherence with which the legal reasoning of the Court can be analysed,
not in terms of judicial activism, but rather in terms of the quality of its legal
reasoning.
Although the above quotation does not provide a definition of coherence,
it offers some helpful hints. First, coherence seems to be thought of as a
feature of the legal system rather than a feature of legal reasoning. In this sense,
coherence seems to be promoted by elaborating new rulings which fit into
the legal system and make it coherent, rather than by elaborating coherent
chains or nets of arguments which justify the ruling—the focus is on whether
a ruling coheres rather than whether an argument coheres.
Second, the notion of coherence which Edward seems to have in mind is
non-foundationalist: Judges do not seek to determine what the law is accord-
ing to the criterion of coherence but, rather, they try to make the legal system
(the existing law and previous decisions) a coherent unit (or whole). By so
doing, the legal system becomes workable and effective. Such a pragmatic
justification for coherence is understandable if one takes into account a par-
ticular feature of European law, namely legal pluralism and, in particular,
the tension between domestic law and EC law. Along with this pragmatic
justification for coherence, the practical consequences cannot be neglected:
A coherent legal system promotes the predictability of judicial decisions
and therefore the value of legal certainty. A very good example of generat-
6
For example, Hartley (1999) seems to reduce the activity of justifying judicial decisions to the
literal interpretation of the European Treaties. Any justification which does not embrace such
a method of interpretation is considered by Hartley to be contrary to the Treaties, and only jus-
tifiable by arguments of a moral, constitutional, and political nature which undermine the rule
of law. Hence, either judges keep close to the wording of the Treaties (as if they did not pose
any doubts concerning their meaning) or they interpret contra legem. This simplification of
the role of judges and the content of legal reasoning is contested by Justice Edward in the
above quotation, and will be contested by this paper.

ing coherence in this sense is provided by the case-law of the Court on waste
oils management: Principles governing this branch of law collide quite often.
For example, on the one hand, the principles of self-sufficiency, proximity,
and “polluter pay” support limits on intra-Community shipments of waste;
on the other hand, free movement of goods and priority for recovery ban
these limits. Solving such a conflict is a matter of generating coherence: “As
points come out”—as Edward says—the Court tries to solve these antino-
mies by laying down the rules which aim to make sense of the legislation
on waste oil management.7
Third, the notion of coherence that Edward has in mind is not global: It
aims at making sense of a particular area of the legal system in which incon-
sistencies appear. Such an account of coherence is very close to the area-
referring or local coherence defended by Levenbook. She says: “Coherence
[. . .] is not always to be achieved to the whole system of established law in
the jurisdiction in question [. . .] Sometimes coherence is to be achieved only
to a subset, to a group of legal standards and decisions constituting a branch
of law. This is a much more manageable task than achieving global coher-
ence, and one that judges with limitations of knowledge and time can be
expected to achieve” (Levenbook 1984, 371).
To summarize, Edward’s quotation seems to provide some clues con-
cerning the notion of coherence the Court might have in mind. First, a coher-
ent account of the law has to be differentiated from a coherent account of
adjudication; second, coherence is not a foundationalist idea, that is, neither
the law nor the justification of a judicial decision can be exclusively deter-
mined by reference to its coherence; and third, local coherence is preferred
to global coherence.
This paper shares most of the above-mentioned findings, but some of them
need to be expanded. In particular, this paper holds that (i) the coherence of
the legal system is not the same as the coherence of the legal reasoning but
both notions are interrelated; (ii) coherence itself collapses when it is thought
of as a foundationalist criterion of the legal system and legal reasoning, and
yet it contains a claim to (axiological) validity; (iii) global accounts of coher-
ence are rejected, although the alternative notion is not a local one.
7
In this sense, the Court established in the Walloon waste case (Case C-2/90, Commission of the
European Communities v. Kingdom of Belgium [1992] I-4431) that according to the principles of
self-sufficiency and proximity which govern in environmental matters (Article 174 EC Treaty
[ex Article 130r]), shipments of waste, no matter whether recyclable or not, might be limited
for environmental purposes. In a similar case, Chemishe Afvalstoffen Dusseldorp, (C-203/96 [1998]
ECR I-4075), the Court delivered a different ruling, for intra-Community shipments of waste
for recovery cannot be limited according to the principle of priority for recovery introduced in
the Regulation on the supervision and control of shipments of waste (259/93 of 1 February).
The Court generates coherence by introducing a distinction: that between waste for disposal
and waste for recovery—principles of self-sufficiency and proximity govern the legislation on
waste for disposal, whereas the principle of priority for recovery governs the legislation on
waste for recovery.

1.1 Coherence of the Legal System and Coherence of Adjudication

Theories of coherence of the legal system focus on fitting a decision into the
legal system, and on fitting together all components of the legal system.
Theories of coherence of legal adjudication focus on the arguments, and on
how the given arguments are connected. Both theories of coherence are
interwoven. Theories of coherence in legal adjudication play an over-
whelming role in determining how to put all these arguments together and
generate truthful supporting structures. By creating supporting structures,
the coherence of the legal system is also promoted in two ways. First, the
judge connects several parts of the legal system, which do not have an
apparent relation at all or even seem to be contradictory elements (the prin-
ciple of self-sufficiency and the principle of priority of recovery in waste oils
management); second, the judge also connects the legal system with politi-
cal, constitutional, and moral theories, and by so doing he or she brings non-
legal reasons which justify—support—the legal system. Notwithstanding
the overwhelming importance of theories of coherence of legal systems, this
paper focuses on the coherence of legal adjudication.
1.2 Idol or Ideal?

Coherence is in vogue either to stress its crucial importance in legal adjudi-
cation (Dworkin, Günther, and, in a different way MacCormick) or to defend
its rather minor task (Levenbook, Raz). In between these extremes there are
an overwhelming number of proposals. Most of them coincide in rejecting
a base-independent and monistic approach to coherence.
First, a base-dependent approach to coherence of legal adjudication high-
lights the facts that its object is the law and that the law is made of (i) prior
judicial decisions, legislative, and regulatory acts; and (ii) a set of principles
embodied in these legal norms and judicial decisions. To say that a norma-
tive statement, as Raz puts it, “will be baptized as law by the pure coher-
ence account of the law, will bear no relation to the law” (Raz 1994, 273).8
Rejecting a base-independent notion of coherence, thus, fits with the idea
that coherence of the law and of legal reasoning depends on the law, not the
other way around.
Second, a monistic notion of coherence is rejected: the idea of a single uni-
versal principle the application of which provides a clear and definitive solu-
tion for every single case is (at least) controversial. It is true that referring
to criteria such as the principle of formal justice, the principle of utility, or
8
To Raz, a theory of law has two elements: the base and the test of coherence. The base cannot
be a person’s belief set, but rather a set which is the same for all persons and which keeps
contact with reality. In particular, this base is made of court decisions and legislative and reg-
ulatory acts. The test of coherence—the second element of a theory of law—applies to the law,
that is, it applies to the base; therefore, any account of coherence of the law is dependent on its
base—the law.

the principle of effet utile (in European law) guarantees the predictability of
judicial decisions and the unity of legal reasoning. Indeed, in EC law, one
could hold that legal conflicts have to be solved in such a way that the effec-
tiveness in practice of European law is always guaranteed. In addition, using
the principle of effet utile as a criterion of coherence has the further benefit
of making all judicial decisions fit into a single line, and in this sense, it pro-
motes the unity of legal reasoning. However, both benefits (predictability
and unity) are fictitious. The effet utile doctrine neither makes the outcome
of legal conflicts more predictable, nor does it promote the unity of legal
reasoning. The case Commission v Germany (C-102/97 [1999] ECR I-5051) pro-
vides a good example in both senses. In this case, one of the last of the waste
saga, the Commission brought an action against Germany for failure to give
priority to the recycling, rather than the thermal processing of waste oils.
The disputed provision was Article 3 of Directive 75/439 on waste oils,
which establishes such a priority “where technical, economic, and organi-
sational constraints so allow.” Since this provision has derogating effects, the
Commission claimed that it should be interpreted restrictively, whereas
Germany argued that it should not. The former interpretation focuses on the
obligations of Member States under EC law, whereas the latter focuses on
the level of discretion of Member States under EC law. Indeed, the inter-
pretation of derogating provisions in EC law is a matter very much related
to the tension between Member States and European institutions.9 The Court
referred to the effet utile doctrine in deciding which interpretation to
embrace: If the technical, economic, and organisational circumstances
obtaining in a Member State were automatically to constitute constraints
which make it impossible to adopt measures for the recycling of waste oils,
that provision would be deprived of all practical effect, and Article 3 would
impose no genuine obligation on Member States. However, to see the deci-
sion of the Court in terms of the effectiveness of EC law is to see only part
of the picture, for the Court referred to other principles of EC law, namely
9
A similar example is provided by the well-known Lappel Bank case (C-44/95 [1996] ECR I-
3843). Here, Article 2 of Directive 79/409 on the protection of wild birds, establishes that
Member States are to take all necessary measures to maintain the population of all those species
of birds at a level which corresponds in particular to ecological, scientific, and cultural require-
ments, while taking account of economic and recreational requirements. Whereas the British
government held that Member States had discretion in determining the boundaries of special
protected areas (a measure devoted to the protection of wild birds) according to ecological and
economic interests, the Royal Society for the Protection of Birds held that economic and recre-
ational interests could be taken into account for the management of the special protected area,
not for its designation. The Court upheld the latter position; it was keen to stress that Article
2 of the Directive on the protection of birds could not amount to an autonomous derogation
clause. Such a conclusion can be interpreted as reinforcing the effectiveness of EC law; however,
it would be more appropriate to interpret it as the equilibrium between the discretion of
Member States and their obligations under EC law: Member States do not have discretion to
take account of economic and recreational considerations when establishing the boundaries of
special protected areas, but they do when implementing the measure.

the principle of the uniform interpretation and application of EC law, and

the principle of proportionality. The Court balanced all these principles, and
reached the conclusion that Article 3 of the Directive on waste oils should
not be restrictively interpreted, but neither should it be interpreted in the
German way. The Court struck a balance between the discretion of Member
States and the obligations imposed on Member States under EC law. The
principle of effectiveness of EC law, although mentioned in this case, was
not used as a criterion which provides a clear-cut solution. Moreover, to
argue that the Commission v Germany case fits into the line of effet utile case-
law of the Court would promote only a fictitious unity. Many cases would
fit into the same line but at the cost of deforming and caricaturing them,
therefore deforming the principles which they contain.
Legal adjudication cannot be reduced to a test of coherence, or in other
words, what makes legal reasoning correct is not a matter of coherence if
coherence is construed as a base-independent and single principle. And yet
coherence—a base-dependent and pluralistic notion—is urged. Why? The
very notion of coherence in legal reasoning assists the judge in pursuing an
ideal: to make sense of the diversity of law. The legal system is made up of
precedents and legislative acts which share neither a single author, nor
the same socio-political (and moral) context. Moreover, its values and prin-
ciples are in a state of continuous tension. This paper argues that a base-
dependent and pluralistic notion of coherence, unlike competing notions,
deals with the diversity of law without distorting it: It is possible to make
sense of the law and legal reasoning without giving up its complexity, and
without attempting to make the law a tensionless normative system. In this
sense, abandoning base-independent and monistic approaches to coherence
permits us to abandon an idol and to welcome an ideal.
2 Global, Local and In-Between Notions of Coherence

One extreme approach to coherence holds that coherence in law and legal
reasoning is incompatible with the claim of the authority of law. The antithe-
sis holds that law is coherence. This is Dworkin’s proposal of law as
integrity. This section argues that global conceptions of coherence, and
Dworkin’s coherence is an example, should be abandoned when talking
about coherence in legal reasoning.
Dworkin’s well-know coherence thesis says that “[A]ccording to law as
integrity, propositions of law are true if they figure in or follow from the
principles of justice, fairness, and procedural due process that provide the
best constructive interpretation of the community’s legal practice” (Dworkin
1986, 225). He also says that “The adjudicative principle of integrity instructs
judges to identify legal rights and duties, so far as possible, on the assump-
tion that they were all created by a single author—the community personi-

fied—expressing a coherent conception of justice and fairness” (Dworkin

1986, 225). Integrity demands that the judge takes account of the law,
namely, enacted legal norms, prior decisions, and principles (either explicit
or implicit) and treats these materials as expressing a coherent set of prin-
ciples, which are of three kinds: justice, fairness, and procedural due process.
The metaphor of the chain novel, which he applies to legal adjudication,
explains very well the judge’s role as the receiver of past materials (chap-
ters), and as the author of new material. This creative function is especially
needed when deciding so-called hard cases.10
The constructive interpretation which Dworkin proposes does not reject
the idea that judges are creative. His major concern, in this sense, is to
explain that judges are creative without having discretion.11 And here is
where a strong requirement of coherence (integrity) enters into play. In hard
cases, Dworkin argues, judges do not have discretion to determine what the
law is; they rather represent the community and interpret existing legal
materials to find out (rather than to create) implicit rules. The law, finally,
has to be interpreted as expressing a coherent conception of justice and fair-
ness (Dworkin 1986, 225). Hence, judges create law, although they enjoy no
discretion; integrity determines what the law is, though “the principle of
integrity in adjudication does not necessarily have the last word about how
the coercive power of the State should be used. But it does have the first
word, and normally there is nothing to add to what it says.” (Dworkin 1986,
219). Integrity is a virtue alongside justice and fairness, and procedural due
process.
Dworkin’s notion of coherence appears to be base-dependent, for judges
cannot freely deviate from or create new law. However, among other objec-
tions to his proposal, Raz points out that it ignores the authority of the law
(Raz 1994, 279ff.). That is, although Dworkin does not disregard the fact that
legal adjudication must take account of enacted law and precedents,12 in
hard cases coherence allows for deviation from the law. Dworkin would
argue though that such a deviation does not occur, for the judge, by repre-
senting the community, must find implicit rights and duties, that is, rights
and duties which are already part of the legal system. However, Raz is right
when he points out that for Dworkin, coherence, i.e., moral values,
determines the law. Law, therefore, is not authority, it is morality, that is,
10
In hard cases, this article argues, either the law does not provide a solution, or it provides
contradictory answers. It should be added that hard cases are also those in which the law pro-
vides a clear answer but either it is unreasonable, or the consequences are not acceptable.
11
It seems that Dworkin interprets judicial discretion as an open door for arbitrariness in law.
12
As Raz says, it would be absurd to elaborate a theory of coherence of law and legal adjudi-
cation which ignores its object, namely the law. Indeed, the test of fit proposed by Dworkin
expresses the requirement of taking account of previous legal material (statutory provisions
and precedents). However, rather than a requirement of coherence, the test of fit expresses a
crucial requirement of any account of legal adjudication.

coherence. However, law as coherence,—i.e., as integrity—means that law

has abdicated its authority, and has embraced a moral foundation. In this
sense, Dworkin’s notion of coherence is base-independent.13
Further, the global account of coherence, which Dworkin proposes, tends
to identify coherence as unity and that is a mistake on at least two levels.
First, it presupposes that moral pluralism is bad and, therefore, that any
theory of coherence should tackle such pluralism by interpreting the law
according to the values of justice, fairness, and procedural due process. For
Dworkin, a coherent set of principles (justice, fairness, and procedural due
process) rather than a plurality of irreducible principles, displays coherence.
Hence, the more unified the set of principles is, the more unified (i.e., coher-
ent) the law and legal adjudication.14 This idea implicitly considers that there
is no such a thing as conflict between moral values, since all values express
(or have to be interpreted in order to express) a coherent conception of
justice and fairness. However, as Raz puts it, “moral pluralism means that
conflict is not a result of any imperfection but is the normal state for human
beings.” Furthermore, most of the time, “the correct way of balancing the
competing values does not exist” (Raz 1994, 301). Second, judges are
instructed to make enacted laws and precedent fit into a line which
expresses a coherent set of values of justice and fairness. However, every
single law and every single prior decision contains a compromise between
colliding values. Trying to link isolated compromises as if all were made by
the same author, and as if all were expressing the same value, is to neglect
moral pluralism, that is, the fact that conflicts between values might be
solved in different ways in similar cases.
An alternative to Dworkin’s notion of global coherence is local coherence:
“Sometimes,” says Levenbook, “the legally justified decision is one sup-
ported by principles that are special to a branch of law in this sense: These
principles bear little resemblance to, and are incoherent with, principles in
other branches of law” (Levenbook 1984, 367). Such a task is easier to fulfil
than that required by global coherence, given the limits on time and knowl-
edge. This is also the notion of coherence that Justice Edward probably has
in mind when talking about the task of the judiciary. Unlike global accounts
13
Dworkin seems to argue that it is possible to achieve perfect moral solutions according to a
coherent set of principles, and do so in real conditions of practical reasoning (limits on time
and knowledge, coercion, etc.). If that is the case, there is no need to justify the authority of the
law; moreover, there is no need of law.
14
Dworkin’s concern for unity goes further, since in order to interpret the law as a unified
(coherent) set of principles, the judge must represent the community. Günther is right when he
says that “Dworkin projects the ideal of a coherent interpretation from the analysis of legal
adjudication in hard cases into the ideal of a principled community, and then takes it back into
legal adjudication. In consequence, it is the judge who inherits integrity as a device of repre-
sentation of a fair and just practice in a community of principle; it is the judge who becomes
the representative of the ‘single author’ of a coherent interpretation” (Günther 1995, 46).
Ultimately, Dworkin’s conception of coherence to legal adjudication seriously clashes with the
principle of democracy and democratic representation.

of coherence, the local approach accepts value pluralism, that is, it accepts
that there is a great variety of values which are irreducible, and conflicts
between them are an inescapable aspect of moral theory. Judges achieve
particular compromises between colliding values which should not be
tied together as if one single compromise covered all cases. Coherence, in
this sense, should not be an instrument to eliminate conflicts of values; it is
rather “a mere by-product of the consistent application of a sound moral
doctrine” (Raz 1994, 299). The “sound moral doctrine” to which Raz refers,
does not instruct the judge to take the morally best ruling; rather it instructs
the judge to take that decision which does not undermine the authority of
the law, for comprehensive reforms of the law cannot be attained by the judi-
ciary. Indeed, if one treats law, as Raz does, as authority, then, those coher-
ent compromises achieved in legal reasoning are mere “by-products.” It
seems that Raz is arguing for some form of literal interpretation (the most
loyal to the authority of the law) and against coherence.
However, both global and local accounts of coherence share the same
drawback: They do not differentiate between coherence in law and coher-
ence in legal reasoning. Both local and global notions focus on coherence of
the law, so a legal decision is coherent if it fits into a set of principles
(Dworkin), or principles and norms of a particular branch of law (Raz and
Levenbook). For theories of coherence of legal system, coherence is a quality
of the ruling, rather than of the reasoning.
3 Coherence: A Modest Proposal

Global and local notions of coherence share the same type of question,
namely, “Does the ruling R cohere either with a particular set of principles
(Dworkin), or with the principles and norms of a branch of the legal system
(Raz and Levenbook)?” This paper aims at dealing with a different ques-
tion, namely, “Does the argumentation which supports the ruling R cohere?”
In this sense, the challenges that global and local approaches to coherence
pose are the following: First, an appropriate theory of coherence has to deal
with the tension between authority and morality (coherence) in law, without
reducing this tension to either of its colliding elements; second, an appro-
priate theory of coherence has to deal with value pluralism, without
attempting to reduce colliding values to a set of principles; and finally,
coherence in legal reasoning must not be exclusively dependent on the
notion of coherence in law. That is possible if the particular is also taken into
account.15
This paper tries to face the above-mentioned challenges by embracing a
modest notion of coherence: a conception which has less normative content
15
The attention to the particular is what differentiates a coherent account of law from a coher-
ent account of legal reasoning, for legal reasoning starts from a particular situation (Bankowski
2001, Chap. 9).

for the sake of a greater operativeness. By a modest notion of coherence is

meant an indeterminate criterion of rightness which is not able to provide
an ultimate answer for every case; by an operative notion of coherence is
meant a conception which allows one to decide by simultaneously taking
account of values, principles, and rules, and paying attention to the particu-
lar. That is, coherence provides a tool “to balance the reasons when holding
the curtain ajar” (Bankowski 2001, chap. 9).16
Unlike global and local notions of coherence, this modest proposal aims
at explaining coherence in legal reasoning, for it deals with the question
“Does the argumentation which supports the ruling R cohere?” That is,
rather than focusing exclusively on the consistency of the ruling within a
normative (moral or legal) system, a modest notion of coherence focuses on
arguments, and how these arguments support a particular ruling.
The starting point for the modest notion of coherence supported here must
be the claim to correctness in legal adjudication. A modest notion of coher-
ence focuses on arguments; moreover, arguments are the principal tool
in legal adjudication. However, arguments seem to be a weak tool since
they cannot be said to be true or false. Indeed, (legal) argumentation is not
a matter of (proving) truth or falseness; it is rather a matter of claiming that
the argumentation and the arguments are correct. Alexy spells out two
aspects of the claim to correctness in legal argumentation (Alexy 1996, 432).
First, a judicial decision is correct if it is justified according to the valid law.
This aspect is about the legal quality of the argumentation. Second, a judi-
cial decision is correct if the law applied is rational or fair. This aspect is
about the correctness of the legal decisions as such. Both aspects (formal and
substantial, that is, legal validity, and rationality and fairness) have to be
satisfied to achieve legally correct judicial decisions.17
16
Bankowski uses the metaphor of “holding the curtain ajar” to bridge the gap between the
domain of the universal (rules) and the particular. He argues that rules are abstractions of the
particularity of the case which take us away from the particular itself. Indeed, when applying
a rule, one has to abstract the particularity of the case and make out of it a legal category, so
applying the rule to the case is the activity of creating categories which can be subsumed into
the norm. Bankowski proposes a different way of dealing with the universal and the particu-
lar: That of balancing without folding this balancing into universalistic criteria. He calls that
“balancing when holding the curtain ajar.” This allows us to take account of the particular
without exhausting it in general categories.
17
A decision which makes evident the violation of the first aspect of the claim to correctness
goes: “I sentence Mr. N to ten years of imprisonment, according to an invalid law”; whereas
the violation of the second aspect of the claim to correctness is made evident in the following
ruling: “I sentence Mr. N to ten years of imprisonment, according to an unfair law.” This aspect
of the claim to correctness is missing in the case Daniels and Daniels v. R. White & Sons and Tarbard
(1938) 4 All E.R. 258. The plaintiffs sued the manufacturer of lemonade and the publican who
sold a bottle of lemonade containing carbolic acid. The legal question was whether the publi-
can was liable for damages, even though she could not examine the content of the bottle of
lemonade she sold. Justice Lewis said: “I therefore find that this was a sale by description, and
therefore hold—with some regret, because it is rather hard on Mrs Tarbard, who is a perfectly
innocent person in the matter—that she is liable for the injury sustained by Mrs Daniels through
drinking this bottle of lemonade.”

The claim to correctness means a claim to justifiability: Legal justification

is the rational activity of giving reasons to support the correctness (both
aspects) of a particular decision. Further, the link between the claim to cor-
rectness and coherence is clear: To justify, the given arguments have to form
coherent units of reasons. In this sense, this article argues that coherence is
a quality of the connections between the given arguments which support a
decision, rather than depending exclusively on fitting the ruling into the
legal system.18
A modest notion of coherence which focuses on how to construct coher-
ent supportive structures of arguments is crucial in legal reasoning. It com-
plies with value pluralism, for judges are instructed to take account of all
relevant reasons (norms, values, rights, policies, etc.) without reducing this
complexity to a set of values. Further, it instructs the judge on how to deal
with conflicts of reasons without providing an answer,19 for it fails to attrib-
ute a particular weight to colliding reasons (values, rights, policies, norms,
etc.). Evaluation is closely related to the particularities of the case. What
matters, however, is how this evaluation is justified, that is, how well con-
nected are the premises of the reasoning. In this sense, a modest notion of
coherence instructs the judge as to which properties of the supportive struc-
ture have to be taken into account.
4 Packing the Suitcases

To explain the dual quality of coherence as a criterialess criterion of legal
reasoning, the best metaphor is that of the journey: a journey “without an
end in the sense of a destination—what is important is the journey rather
than the destination” (Bankowski and Chistodoulidis 1998, 345). Bankowski
refers to the journey metaphor to explain the process of European integra-
tion. However, this metaphor also explains coherence (both of the legal
system and of legal reasoning) as a journey whose destination is like the
horizon: an ideal. “You never actually arrive at the horizon for as soon as
you arrive where you thought it was, new vistas and new horizons open
up. Ideals, like signposts, point to somewhere further away but to no spe-
cific place” (ibid.). The metaphor of the journey highlights two crucial qual-
ities of coherence: that it is a process, and that it is an endless one. If one
applies this notion to coherence in legal adjudication, then, what matters
is the continuous process of generating coherence, that is, the continuing
process of connecting reasons and creating supportive structures. Legal
18
This notion of coherence in legal reasoning and the notion of coherence in legal system are
interwoven. First, the judge connects several parts of the legal system, which do not have
an apparent relation at all or even seem to be contradictory elements; second, the judge also
connects the legal system with political, constitutional, and moral theories, and by so doing
he or she brings non-authority reasons which justify—support—the legal system.
19
Alexy speaks about criterialess criteria of rationality. According to them, coherence is not a
determinate criterion, “but it need not be determinate in order to make sense” (Alexy 1998, 47).

decisions are like the signposts which guide our journey: They point to
something which has sense—which is coherent—but we never get there for
all they do is point us on the way.20 Yet there is a minimal relationship
between the signpost (arguments) and the path (legal system) in the sense
that the signposts help us to make sense as a path.21
To travel towards the ideal called coherence, two basic tools have to be
packed: a comprehensive account of reasons and supportive structures. Is
the Court prepared to travel to coherence or are the necessary tools avail-
able to travel towards coherence alien to the Court or to European law? The
answer to this question has an immediate implication: To test whether
or not the Court complies with the notion of coherence proposed here.
However, the most interesting implication of this analysis is to escape from
a monistic reconstruction of the case-law of the Court, making all decisions
fit into a single principle, such as European integration, and thinking of it
as a criterion of coherence. This can only be achieved at the high price of
deforming and caricaturising the compromise between different (colliding)
principles and values that each decision contains. Moreover, because the
modest notion of coherence focuses the analysis of the Court’s case-law on
reasons and connecting reasons, the criticism of judicial activism of the
Court can be rejected. More precisely, the modest notion of coherence argues
that policy arguments have to be taken into account and connected to other
arguments (rights and values) in order to promote the coherence of the legal
system.
4.1 Comprehensive Account of Reasons

Legal reasoning is a matter of justification. Further, to justify is the activity
of supporting a particular statement with good reasons. Legal justification
involves two kinds of reasons: authority reasons—legal norms, precedents,
and legal doctrine—and substantive reasons—values and principles.
According to Summers, principles include both rightness reasons and goal
reasons (Summers 1978, 716). It is crucial, especially when analysing the
legal reasoning of the Court, to include policies in the comprehensive
account of reasons. Dworkin’s well-known distinction between principles as
only conferring rights and policies as only defining common goals is not
embraced here. Following MacCormick, this paper argues that, rather than
two distinct and mutually opposed spheres, rights and policies are inter-
locking reasons. Policies are courses of action adopted to secure or tend to
20
Bankowski, applying his metaphor to coherence in legal adjudication, points out that there
is a minimal relationship between the signposts—arguments—and the path—the legal system:
Signposts make sense of the path, in the same way as arguments make sense of the legal system.
The journey metaphor seems to provide valuable insights to analyse the relationship between
coherence of the law and coherence of the legal system.
21
I wish to thank Bankowski for this further elaboration of his metaphor.

secure states of affairs which are conceived to be desirable (MacCormick

1994, 261). In legal reasoning, policy arguments justify a particular decision
as the one which will tend to secure a desirable state of affairs (MacCormick
1994, 263). To be used in legal reasoning, policy arguments have to be put
in universal terms (back- and forward-looking statements). The major
contribution of policy arguments is that they give rise to a discussion con-
cerning their desirability, and in this sense, they are closely connected to
rights and values.22 Using policy arguments, as when using rights argu-
ments, connections have to be elaborated between them to support each
other sphere. This promotes the coherence of legal reasoning as much as the
coherence of the legal system.
This is a comprehensive account of reasons which aims at including as
many justifying elements as possible. What matters is not the kind of reasons
used to justify a decision—either authority or substantive reasons—but
whether they are coherently connected.
The Court has embraced such a comprehensive account of reasons, as the
case-law in environmental matters suggests. For example, in the ADBHU
case (case C-240/83 Association de défense des brûleurs d’huiles usages [1985]
ECR 531), one of the first cases in which the Court was requested to solve
the conflict between free movement of goods and environmental protection,
the Court was asked whether a system of permits for shipments of waste
oils established by Directive 75/439/EEC on the disposal of waste oils (and
implemented by the French Government) was compatible with the princi-
ples of free trade, free movement of goods and freedom of competition.23
The limits on free movement of goods, which the system of permits caused,
were justified by environmental considerations. However, when the deci-
sion was issued, the Treaties were silent as to whether environmental pro-
tection was a competence of the Community. The conflict between free
movement of goods and environmental protection posed to the Court a
further conflict related to the structure of its legal reasoning, namely whether
to apply (economic) rights by balancing them against other reasons even if
they were not legally recognised by the Treaties; or whether the Court
should strike a balance only between legally recognized interests. The Court
opted for the first option and, therefore, did not consider whether the pro-
tection of the environment at the EC level prior to the SEA (when environ-
mental protection was fully recognized as a Community goal) was to be seen
as a conflict between the legally coherent solution and the morally sound
22
This approach is extremely useful when dealing with EC law, especially since the Treaties
contain a bunch of policies.
23
The Court was lucky, for it was asked whether the system of permits for shipments of waste
oils was compatible with economic freedoms. The French Court did not ask whether the whole
Directive was valid according to EC law. Had this been the question put by the French Count,
the Court would have had more difficulties to support the correctness of a system of shipments
which limits economic freedoms for the sake of a policy which was not recognized in the
Treaties at that time.

solution. It rather approached the case as “a conflict inside coherence”

(Alexy 1998, 46). Why? Because it took a comprehensive account of reasons.
In the ADBHU case, as in other cases concerning the protection of the envi-
ronment v. economic freedoms, a number of reasons collide: the principle of
legality and legal certainty, the right to a healthy environment as a condi-
tion to enjoy effectively basic rights (Habermas 1996, 123), sustainable devel-
opment, etc. The solution of the conflict of reasons requires coherence:
This is not a matter of considering only authority reasons and excluding
substantive reasons; it is rather a matter of referring to both formal and
substantive reasons to provide a justification.
The Court, despite having embraced a comprehensive account of reasons
in the ADBHU case, failed to promote coherence in legal reasoning, for the
supportive structure among reasons was too weak. This deficiency points
to the second requirement for coherence in legal reasoning, namely the
supportive structure among premises.
4.2 Supportive Structure of Reasons and Its Properties

Reasons justify whether there is a supportive structure between a set of
reasons and a decision, that is, the reason p justifies q if p supports q. The
supportive structure requires making connections between reasons used.
Connections can be deductive, if q logically derives from p; connections can
also be plausible if q cannot be logically derived from p, but both q and p fit
together (Aarnio 1987, 200).24 A supportive structure represents a relation-
ship of coherence between reasons in terms of both logical consistency and
fitting together.25 The focus is not only on the connection between reasons
and the final decision, that is, on how well the final decision follows from
given reasons. According to the notion of coherence held here, attention has
to be given to the way reasons are connected between themselves, even if
they do not derive one from another. The elaboration of “supportive struc-
tures” requires both kinds of connections logical and plausible.
The very idea of justification as the creation of supportive structures, and
the notion of supportive structures as connecting premises—reasons—
justifies a further metaphor: Legal reasoning is a matter of netting argu-
ments. As Wisdom points out, sometimes the process of arguments is not a
chain of demonstrative reasoning (Wisdom 1944, 193). This is so in many
cases, especially when talking about the reasoning of high courts and the
ECJ, where there is an agreement on facts but not on categories. For example,
in the Walloon waste case (case 2/90 Commission v Kingdom of Belgium [1992]
24
In the case of deductive connection it is important that semantic identity should exist
between the features described by the norm and the features of the particular case; in the case
of plausible connections what matters is whether or not the justification provided is relevant.
25
The variety of metaphors to refer to substantive coherence is large: fitting together (Taylor
1971, 7); making sense as a whole (MacCormick 1984); integrity (Dworkin 1986); tightly knit
unit (Pezcenik 1983) are only a few examples.

ECR I-4431), there was an agreement as to the restrictive effects on trade

caused by the prohibition on importing waste oils into the Walloon Region.
The question was whether these limits on internal trade amounted to unlaw-
ful trade restrictions according to EC law. When discussing categories, as
Wisdom calls them, legal reasoning is a matter of giving several arguments
which co-operate in favour of the conclusion. These reasons, Wisdom says,
are like the legs of a chair (Wisdom 1944, 194). This metaphor stresses the
cumulative effect of independent reasons, and the fact that reasoning is hor-
izontally extensive (rather than vertically).
The “legs of a chair” metaphor points to the stability of the reasoning, and
ultimately to the fitting of the final decision into a normative system of rules.
However, the notion of coherence held here challenges Wisdom’s metaphor,
because what matters is not the number of reasons (the number of legs of
a chair) but rather the connection between reasons. Since a chair with con-
nected legs seems a sort of design aberration, the metaphor of nets of argu-
ments is embraced here. It points to how robust the justification is, and
ultimately to the mutual support of premises. This contributes to the coher-
ence of the normative system, for it contributes to the linking of different
elements of the system: It contributes to the mutual support of the parts of
the normative system.
The next question to answer is how to elaborate nets of arguments. To this
aim, the properties of the supportive structure have to be identified.
In a joint paper, Alexy and Peczenik elaborate a number of “criteria of
coherence” necessary to build up a coherent theory (Alexy and Peczenik
1990). They refer to the properties of the supportive structure, to the prop-
erties of the concepts applied, and to the scope of the theory of coherence.
Since this paper considers coherence in adjudication as a matter of connect-
ing reasons, the criteria which determine the properties of the supportive
structures are particularly important. These criteria are: the number of sup-
portive relations and the length of the supportive chain, the strength of the
support; cumulation-chaining of reasons, priority orders between reasons,
and reciprocal justification (Alexy and Peczenik 1990, 132ff.). This paper uses
these general criteria, and elaborates them further in order to construct a
theory of coherence in legal reasoning (rather than a coherent theory of legal
reasoning). According to it, the elaborated criteria of coherence inform the
judge whether the supportive structure of reasons adopts the form of
cumulation-chaining. Although Alexy and Peczenik refer to the metaphor
of chains of reasons, the properties which they elaborate leave the door open
to elaborate connections between different chains, and in this sense, to form
cumulation-netting of reasons. For this reason, the properties of cumulation-
chains apply to cumulation-nets.
1. The number of supportive relations. This criterion instructs the judge to
connect reasons rather than to provide a great number of reasons. This
requirement follows from the description of the supportive structure of
reasons as cumulation-netting. Related to this property, Alexy and Peczenik

refer to the length of the supportive chain. This depends both on the number
of supportive relations and on taking account of all relevant reasons—
comprehensiveness promotes the complexity of the justification.
2. Strong support. This criterion refers to the formal (logical) correctness
of the chain of arguments, rather than to the weight (or strength) attributed
to every reason. The judge should not only connect reasons and create long
supportive chains; he or she also has to create strong supportive links
between premises.
This task is particularly difficult to implement if reasons (legal provisions,
values, and principles) are worded in a general way, as the Treaty provisions
are. Why? Because particular premises sometimes do not follow deductively
from the general provision; that is, jumps in legal reasoning—unjustified
steps—may occur. In the ADBHU case, for example, the Court said that “the
principle of freedom of trade is not to be viewed in absolute terms but is
subject to certain limits justified by the objectives of general interest pursued
by the Community” (paragraph 12). The next premise of its reasoning was
that the “directive must be seen in the perspective of environmental pro-
tection, which is one of the Community’s essential objectives” (paragraph
13). The first premise (p1) supports somehow the second one (p2). However,
from a formal-deductive point of view there is a jump in the reasoning,
because p2 does not follow from p1. To improve the supportive structure and
make a stronger connection between premises, the notion of a set of premises
is required. According to this notion, p1 together with some other premises
r1, s1, nn logically supports p2. In the ADBHU case, the Court could have
elaborated such a set of premises by supporting either the desirability of
environmental protection as a goal or by its desirability as a means. How-
ever, it failed to do so.
Since the ADBHU case, the Court has improved the way it connects
premises. In the Walloon waste case, the Court, following the established
case-law doctrine, held that mandatory requirements, such as environmen-
tal protection (at the time included in the EC Treaty), might justify limits on
the free movement of goods, only if the measure is proportional and non-
discriminatory. The measure introduced by the Belgian government clearly
discriminated between domestic and imported products, for it prohibited
the shipments of imported waste oils into the Walloon Region. However, the
Court considered that the measure was valid under EC law. Again, the Court
made a jump in the reasoning for the premise “discriminatory limitations of
shipment of waste comply with EC legislation” does not follow logically
from the premise “environmental protection may justify limitations of free
movement of goods, provided that the measure is proportional and non-dis-
criminatory.” To justify this logical jump in the reasoning, the Court elabo-
rated a set of premises which included reasons such as consideration of
waste as a good, the environmental aim of the Belgium measure, the
principle of self-sufficiency, and international law which also refers to the

principles of self-sufficiency and proximity. From this set of reasons, the
above-mentioned premises follow logically, so a strong support between
premises is achieved.26
3. Cumulation-netting of reasons. The notion of a set of premises hints at
the importance of cumulating reasons. General provisions (such as the
Treaty provisions) can support different premises and, therefore, different
conclusions. This requires cumulating reasons which contribute to the
elaboration of sets of premises. In this way, cumulating reasons promotes
strong supportive connections between premises, and guarantees the role of
general statements in justification.
Alexy and Peczenik hold that cumulation is also possible between sup-
portive chains (Alexy and Peczenik 1990, 136). In this case, a particular con-
clusion is justified by two independent chains of reasons. But if each chain
justifies the same conclusion, why add—cumulate—them?27 The legal rea-
soning in the case of European Parliament v Council (case 187/93, ECR [1994]
I-2857) could be analyzed as an example of cumulating chains of arguments.
The European Parliament sought the annulment of Regulation No 259/93 on
the supervision and control of shipments of waste. The European
Parliament argued that the Regulation which concerned the movement of
goods (waste) should have been based on Article 100a EC Treaty [new Article
95] (concerning the harmonisation of provisions whose object is the estab-
lishment and functioning of the internal market) rather than be based on 130s
[new Article 175] (environmental protection). Each provision establishes a
different voting system at that time: Whereas Article 100a established a quali-
fied majority in the Council and cooperation of European Parliament, Article
130s excluded such cooperation and required unanimity in the Council.28
The Court deemed that the legal basis of the discussed Regulation (Article
130s) was rightly chosen. Paragraphs 17–23 contained the first chain of
reasons which focused on the aim and content of the legislative measure.
These criteria determine the right legal basis. In particular, the Court
held that the aim of the measure was a system of management of waste
26
Notwithstanding the importance of creating strong supportive links between premises,
coherence cannot be reduced to this formal (logical) criterion. However, the strong support
between premises contributes to the consistency and the formal correctness of all steps of the
reasoning.
27
The requirement of cumulating independent chains of reasons provides a criterion to dif-
ferentiate demonstrative reasoning from justificatory reasoning. Establishing the facts of a case
(limits on the free movement of goods) is a matter of demonstrative reasoning: What matters
is the number of reasons which support the same conclusion. This form of reasoning aims at
establishing the truth of facts. Balancing the free movement of goods against environmental
protection is a matter of justificatory reasoning: What matters is how well justified the conclu-
sion is. This form of reasoning aims at supporting the correctness of the decision (rather than
its truthfulness). This, argues this paper, is a matter of netting reasons rather than cumulating.
28
The Amsterdam Treaty has unified the procedure: Both approximation of provisions con-
cerning the internal market, and environmental protection provisions are adopted according
to the codecision procedure established in Article 251 EC.

compatible with the preservation, protection, and improvement of the

quality of the environment and the protection of human health and the envi-
ronment. This was also established by Directive 91/156 on waste and by the
Court in case C-155/91 ([1993] ECR I-939) Commission v Council. The content
of the discussed Regulation, said the Court, was the establishment of con-
ditions and procedures of shipments of waste which were compatible with
the protection of the environment and with the principles of environmental
policy, namely proximity, priority for recovery, and self-sufficiency. The
environmental aim and content of the discussed Regulation pointed to
Article 130s (environmental protection) as the legal basis. The Regulation
was, therefore, valid.
As if this chain of arguments were not enough to justify the conclusion
(the validity of the Regulation on shipments of waste), the Court went on
to elaborate a second chain of arguments. According to this, the ancillary
effects of legislative measures do not determine their legal basis. In para-
graphs 24–6, the Court said that although the Regulation on shipments of
waste had some effects on the harmonization of market conditions, this did
not mean that Article 100a EC Treaty was the valid legal basis.29 One could
argue that by adding this second chain of reasons the conclusion of the Court
was more strongly justified: Two reasons—the aim and content and the
irrelevance of ancillary effects—support the same conclusion.
However, the relevance of cumulating independent chains of reasons can
be questioned. Why did the Court refer to the ancillary effects of the
Regulation? Are the aim and the content of the Regulation to be differenti-
ated from its principal effects? Is the distinction between principal and ancil-
lary effects of a measure (if such) determined by the aim and content of the
measure? These questions emphasize that when referring to a second chain
of reasons, one has to justify why such reference is made, and how it is con-
nected to previous chains of reasons. Independent chains of arguments do
not make legal justification stronger but weaker: It becomes unclear which
relevant argument (or chain of arguments) supports the conclusion: either
the aim and content of a measure or the principal effects of the measure;
either the wording of the measure, or its effects regardless of what the
measure itself establishes.
This criticism against cumulating independent chains of reasons under-
lines the main thesis this paper defends: Legal justification is a matter of
connecting reasons. Two chains of reasons mirror a more coherent legal jus-
tification only if the given chains are connected. Otherwise, one of the chains
is superfluous and part of the justification redundant.30
29
In the case 155/91 Commission v Council the Court referred to the distinction between prin-
cipal and ancillary objectives of legislative measures.
30
Adding independent chains of reasons does not promote coherence. In Common Law,
however, the distinction between ratio decidendi and obiter dicta can be perceived as an addition
of reasons, although not fully independent ones. However, this distinction rather points to the

4. Priority orders between reasons. These have to be established in the event

that more than one reason applies to a single situation. Priority orders estab-
lish that a particular valid rule has preference over another valid rule in a
particular case;31 the same happens when instead of valid rules, priority rela-
tions are established between principles. To fully understand this, the notion
of principles as commands to optimize has to be introduced.32 This notion
is deeply connected to the logical role of principles in legal reasoning.
Indeed, rules and principles have a different logical role in legal reason-
ing. Basically, rules cannot be weighed, whereas principles have to be
weighed; that is so because deductive logic applies to rules, whereas the
logic of preference applies to principles. This is not denied by the fact that
in some situations (hard cases if these exist), a preference has to be estab-
lished between colliding valid legal rules, or between colliding interpre-
tations. In these cases, the colliding valid legal rules or the colliding
interpretations are prima facie applicable. The choice of the valid norm or the
interpretation which is going to be applied depends on the weighing and
balancing of principles.
Unlike rules, principles are always weighed. A conflict of principles33 is
solved by the so-called logic of preference (Aarnio 1997, 183) or logic of bal-
ancing, rather than by the either-or logic applicable to rules. However, this
statement needs further explanation when one takes into account the dis-
tinction between principles as prima facie or as pro tanto reasons.34 As prima
facie reasons, principles can be considered to justify a decision; however,
only once a particular situation is taken into account, are some principles
relevant to the case, whereas some others are not. That is, as being prima facie
fact that chains of reasons can be differentiated (and isolated), for one has binding force and
the rest do not. The fact that several chains of reasons can be identified in a judicial decision
does not invalidate the requirement that these chains have to be connected in order to promote
the coherence of the decision.
31
There are conflicts between legal norms which claim validity, and conflicts of legal norms
which claim to be applicable to a particular situation. Conflicts concerning the validity of legal
norms are solved by a number of criteria: by source-oriented or process-oriented criteria in the
case of systemic validity (has the legal norm been enacted by an authority with competence
and following the procedure?); acceptance-oriented criteria (custom) and effectiveness-oriented
criteria in the case of factual validity; and content-oriented criteria in the case of axiological
validity (acceptance of the norm). The outcome of applying these criteria is the expulsion from
the legal system of the non-valid legal norm. Turning to the second category of conflicts, namely
conflicts concerning the applicability of valid norms, these are solved by taking full account of
the relevant aspects of a situation. The outcome is not the dropping of a norm from the legal
system, but rather establishing the priority of a norm in a particular situation.
32
Principles can be defined as optimized commands or as commands to optimize. The first cat-
egory involves a passive evaluation: What is the given weight of a particular reason; the second
category—principles as commands to be optimized—involves an active evaluation: What is the
weight of principles in a particular situation all-things-considered.
33
Aarnio (1997, 182) distinguishes between principles (e.g., free movement of goods);
principle-like rules (e.g., proportionality); and rule-like principles (e.g., the rule of reason).
34
Concerning the distinction between prima facie and pro tanto reasons, see Rabinowicz 1998,
and Kagan 1989.

reasons, principles apply in the same either-or fashion as rules: One princi-
ple (or principles) applies, and another (or others) does not. Those princi-
ples which have not been defeated are pro tanto reasons. Only as pro tanto
reasons can principles be understood as commands to optimize. Whenever
certain principles apply to a situation, a balance has to be found among
them. This means that some principles carry more weight and others less
weight. In other words, the weight of a principle will not undercut a com-
peting principle.
But what does it mean to say that some principles have more weight than
others? Indeed, the choice of the metaphor of balancing and weighing pre-
supposes the existence of a metric to measure the weight. This is not the
case, for principles do not contain a pre-established weight which is known
beforehand. Rather, the evaluation of the weight of principles35 depends on
the particular case. This proposal is extremely weak, but it is not irrational,
because it does not challenge the requirement of giving reasons to justify
why a certain aspect of a particular case is relevant.
The Court has included this theory of principles as commands to optimize
its model of legal reasoning. Indeed, in cases of conflict between rights (free
movement of goods) and goals (environmental protection), the Court
applies the rule of reason introduced in the Cassis de Dijon (case C-120/79
[1979] ECR 649) case. This rule contains a command to establish priority
orders between colliding Community principles (or interests); the outcome
should be neither disproportional nor discriminatory. Initially, the Court
referred to proportionality and discrimination as clear-cut criteria, which
determine the priority of colliding reasons in an either-or fashion. In this
sense, a proportional measure is that which least restricts the free movement
of goods, and a discriminatory measure is that which establishes a different
treatment between domestic and imported products. In recent judgments,
however, the rule of reason is thought of as a command to find a compro-
mise between colliding principles, that is, it is a command to establish pri-
ority orders which are the result of balancing colliding principles. This has
been possible because proportionality and non-discrimination are not
understood as definitive criteria, but rather as balancing criteria, that is, as
criteria which rationalize the process of evaluating the weight of reasons in
particular cases without imposing or determining the outcome. Balancing
criteria do not instruct the judge to find the less restrictive compromise, or
the non-discriminatory one in terms of distinction between domestic and
imported products. They rather instruct the judge to take account of the par-
ticularities of the case, to balance them, and to find a compromise between
them in such a way that “the more intensive the interference in one princi-
ple is, the more important must be the realization of the other principle”
35
Weight is the metric to use in the sense that one could balance principles against each other
to identify the one which is the heaviest, but there is no metric for weight, i.e., one would not
know how to measure heaviness, just that this one is heavier.

(Alexy 1992, 150). The importance of such a new understanding of propor-

tionality and non-discrimination is that the focus on legal reasoning moves
from answering questions such as “is the measure the less restrictive one?”
or “does the measure differentiate between imported and domestic prod-
ucts?” towards “what are the relevant features of the case which are going
to be balanced?” That is, the attention is shared between both universal rules
and the particularities of the case. Here is where the words which Eco’s
William addressed to Adso apply.
The outcome of balancing or weighing are priority orders, a kind of effort
to encapsulate the particular in universal norms.36 At the ECJ, the waste
cases saga provides a good example of how the Court establishes priority
orders, that is, transforms evaluations of particularities into rules. In the
Walloon waste case several principles collided: free movement of goods, non-
discrimination, environmental protection, and self-sufficiency. The Court
established that discriminatory domestic provisions which limit the free
movement of goods are justified by the principle that environmental damage
should as a matter of priority be remedied at source. This priority order
contrasts with that established in the case Chemishe Afvalstoffen Dusseldrop.
The colliding principles were, as in the previous case, free movement of
goods, environmental protection, self-sufficiency, and proximity. However,
the Court considered that the principle of priority for recovery was also a
relevant feature in that case. This wider description of the Chemishe Afval-
stoffen Dusseldrop case led to a priority order different from that established
in the Walloon waste case. Indeed, the Court established that in the case of
waste for recovery intra-Community shipments of this waste should not
reflect the principle of self-sufficiency and proximity, but rather the princi-
ple of priority for recovery. The outcome is different priority orders (rules)
which apply to different cases: The principle of self-sufficiency has priority
when the measure rules on waste for disposal, whereas the principle of pri-
ority for recovery has priority in the event that waste for recovery is the
object of a particular measure.
Priority orders reveal that although incommensurable, values and princi-
ples can be evaluated. The fact that there is not a metric system, according to
which a particular weight is assigned to values and principles, does not mean
that the evaluation is arbitrary or irrational. Reasons have to be given to justify
choices. One could counter argue that, even if choices are justified by reasons,
they remain irrational and arbitrary, for when evaluating values and princi-
ples not only general rules are taken into account, but also the “intuition of
the particular”—as Eco’s William would say—cannot be dismissed. Would
choices be rational if one renounces the particular? Priority orders show that
it is possible to handle both the universal without closing the door to the
36
Priority orders are used to solve future similar collisions; they are thought of as rules because
otherwise the notion of balancing would be very weak (Aarnio 1997, 182).

particular, and the particular without closing the door to the universal.
Indeed, priority orders are the outcome of trying to encapsulate particulari-
ties into general rules, for the world is mediated by the concepts and cate-
gories of language and thought (Veitch 1998, 230). That is, priority orders are
the outcome of a process of abstraction of the particular in order to produce
categories which can be used to approach future cases. However, these pri-
ority orders—these categorisations of particularities—do not prevent the
judge from appreciating new features, and in this sense, creating a new pri-
ority order (as the former examples of the Court’s case-law show).
5. Reciprocal justification. This final property of supportive structures is
connected to the idea of plausible connections between reasons.37 Logic
support exists when p1 derives p2. This logic connection can also work in the
other direction, so that p2 supports p1. Both p1 and p2 are reciprocally justi-
fied. If that is true, then p1 and p2 are equivalent (Alexy and Peczenik 1990,
137); however, if all premises of a system are equivalent (all support each
other), then the system will contain one single premise. This conclusion is
absurd. To overcome this problem Alexy and Peczenik refer to the notion of
set of premises: The reason p1 together with r1 and s1 form a set of premises
from which p2 can be logically deduced. At the same time, say Alexy and
Peczenik, p2 might belong to another set of premises from which p1 derives
(Alexy and Peczenik 1990, 138).
The property of reciprocal justification, as proposed by Alexy and
Peczenik, highlights two ideas already mentioned. First, logical support is
not enough to justify: Plausible connections between reasons (belonging to
the same set of premises) promote coherence. Second, the best metaphor to
explain the structure of legal justification is the net, for, in a net of reasons,
reasons reciprocally support each other. The metaphor of the net of reasons,
although very convenient to connect reasons in a coherent manner, does not
solve the problem of circularity of a coherent justification (if p1 supports p2,
then p2 supports somehow p1). That is because circularity is accepted. Or
better, what is accepted is the fact that our knowledge of what amounts to
a good reason does not have unshakable foundations (Peczenik 1998, 11)
such as empirical data. It is also accepting that the demand for reasons is
infinite, especially since the demand for reasons does not aim at finding out
the ultimate basis of knowledge (since monistic notions of coherence have
been rejected, see ibid., 3). Circularity is accepted: The more reciprocal the
justifying structure, the more robust is the justification.
This is the requirement least fulfilled by the Court. Indeed, its decisions
follow very much a logic-deductive pattern which excludes circularity: The
focus is on the justification of the conclusion (the verdict), rather than on the
justification of the premises themselves; it also focuses on deductive con-
nections rather than plausible supportive structures. The lack of reciprocal
37
The notion of plausible connections is from Taylor (1971, 7ff.).

justification of premises can be explained by the non-acceptance of circu-

larity as a quality of legal reasoning. Yet it seems clear that principles such
as effectiveness and supremacy of EC law, protection of individual rights,
etc., are premises which can be connected to justify each other.
5 The Limits of a Modest Notion of Coherence. Or its Qualities?

A comprehensive account of reasons, coherence as connecting reasons, and
the properties of supportive structures are parts of a theory of coherence of
adjudication according to which a coherent legal justification makes the con-
clusion more or less defensible, rather than true or false; legal justification
depends on the supportive structure which links given arguments (both
formal and substantive), rather than the number of reasons; the weight of
the given reasons depends on the supportive structure rather than on a
previously attributed weight; and finally, netting reasons is preferred to
cumulation.
This is a modest notion of the coherence of adjudication which Peczenik
calls epistemic coherence: Instead of asking whether the law should cohere
(strong normative claim), the proposed theory of coherence in adjudication
asks whether my/an argument coheres. Whether or not my/an argument
coheres is a matter of making logical and plausible connections between
premises. The limits of this notion of coherence are well known; however,
its value is not defeated.
The proposed notion of coherence does not provide conclusive answers.
Apart from outrageously wrong judicial decisions (from the logical or
formal point of view), which are widely discussed by the media, one case
can be solved in different ways, that is, a number of reasonable solutions
apply to the same case. The fact that the rightness of a judicial decision
cannot be determined by definitive criteria, does not mean, however, that
the whole enterprise (adjudication) is irrational (or arbitrary). When making
connections between premises, a number of minimal requirements apply
(comprehensive account of reasons, connecting reasons, and properties of
nets of arguments). These do not provide the final (objectively right) solu-
tion, but rather provide tools to prevent arbitrariness, and in so doing they
promote rationality. It is still arguable that a criterialess criterion of coher-
ence does not solve the problem of the inconclusiveness of rival solutions.
However, this is so because rather than providing a conclusive solution,
legal reasoning is an activity which proceeds under a claim to correctness
(Alexy 1996).
Here is the greater contribution of a criterialess criterion of coherence
together with the pretension to correctness: the capability of dealing with
complexity without simplifying or renouncing it. It does so by taking
account of time which influences both the perception of the universal—rules
and principles—and the perception of the particular—the features of cases.
Indeed, a judicial justification can be coherent at time t1 whereas at time t2

it is incoherent because new rules and principles belong to the normative
system.38 Not only normative data (rules and principles) are taken into
account; also new factual data are considered, and hence, if a particular
feature of a case (environmental protection) was irrelevant at time t1, the
same feature becomes relevant at time t2.
Second, coherence in adjudication is not a value-free theory. It does not
disregard values, but it rationalizes the evaluation or choices. The fact that
some principles—proportionality and non-discrimination—are preferred to
others—free movement of goods—or the fact that a particular feature is con-
sidered relevant at time t2 and not at time t1, are choices which are closely
connected to our system of values. This is too weak, so we require these
choices to be justified by reasons. However, reasons (authority and sub-
stantive reasons), if they claim justifying force, are closely connected to our
system of beliefs, such as the belief that European integration is an instru-
ment to pursue peace. What coherence requires is twofold. First, this system
of beliefs has to be arranged in a coherent manner; second, reasons have to
be given in a coherent way to support our choices. In this sense, coherence
promotes rationality without giving up our belief system.
A final word on the connection between coherence and legal certainty. The
notion of coherence which has been defended here promotes legal certainty
in the sense of formal predictability, for procedural tools are provided to
avoid arbitrariness and increase the predictability of judicial decisions.
However, as a criterialess criterion, coherence neither solves the incon-
clusiveness among rival options nor reduces it to a system of values. The
outcome is that coherence undermines legal certainty. This is true if legal
certainty is understood exclusively as predictability. However, it is argued
that legal certainty also means that the solution (the outcome of the proce-
dure) must be also right (Aarnio 1997, 191), or morally acceptable (Peczenik
1988, 134).39 That is, legal certainty is both law and valuation, or rational and
reasonable. This understanding is perfectly compatible with a notion of
coherence which is both procedure and substance.
6 Conclusions
This paper argued that coherence is a key component of a non-foundation-
alist theory of law (in opposition to Dworkin), without reducing it to a mere
by-product (in opposition to Raz and Levenbook). This has been possible by
elaborating a modest notion of coherence in legal reasoning which instead
of dealing with the question “Is the ruling R coherent within the legal
system?” deals with the question “Does the argumentation of the ruling R
38
Does it mean that the judge at time t1 was incorrect? Or as MacCormick poses the question,
“Can judges make mistakes?” (MacCormick 1999, 76).
39
This statement is backed by the idea that the notion of validity is axiological.

cohere?” As such, this question shifts the interest towards justification.

Justifying is the activity of giving arguments to support premises. Further,
this paper has argued that supportive structures of reasons are created by
connecting reasons: Justifying is the activity of creating cumulation-nets of
reasons. A notion of coherence in legal reasoning is required here to explain,
for reasons justify if the cumulation-nets they form are coherent. This paper
provides some criteria which help the judge when elaborating coherent
cumulation-nets of reasons. These are criterialess criteria of coherence, that
is, criteria whose use promotes coherence but that do not provide a defini-
tive answer. These are: comprehensive account of reasons and properties of
supportive structures (number of supportive relations; length of the sup-
portive structure; strength of the support; cumulation-netting of reasons;
and reciprocal justification).
When the case-law of the Court is analysed according to this modest
notion of coherence some benefits can be appreciated. First, unlike
Dworkin’s notion of coherence, the modest notion of coherence provides a
theoretical theme in which value pluralism remains the great virtue, rather
than drawback of a coherent account of European law and the Court’s legal
reasoning.
Second, unlike notions of coherence which focus on the test of fit of the
Court’s rulings (Dworkin and Raz), the modest notion of coherence focuses
on the analysis of the reasoning of the Court. In this sense, one of the fea-
tures of the reasoning of the Court which contributes to coherence is the
understanding of principles as commands to optimize. The Court hints that
the difference between legal norms and principles is not a semantic one;
rather it depends on their different role in legal reasoning. The outcome of
applying principles as commands to optimize are priority orders between
colliding reasons or interests. The Court understands priority orders as
being compatible with taking account of time in legal reasoning. The fact
that in a situation in time t1 the priority order p1 is achieved, whereas in time
t2 a different priority order p2 is achieved for the same situation, implies that
time influences both the perception of the universal—rules and principles—
and the perception of the particular—the features of cases. Such an account
of time in legal reasoning hints at an answer to the question “Can the Court
(any judge) make mistakes?” The Court should do more in terms of cumu-
lation-netting reasons and in terms of reciprocal justification. The Court
tends to cumulate independent chains of arguments as if the justifying force
of every chain could be added. It sticks with a model of reasoning in which
premises are chained rather than netted. This undermines the reciprocal jus-
tifying force of premises, especially when talking about plausible connec-
tions between reasons, and, therefore, it undermines the coherence of the
legal reasoning.
Finally, unlike those who accuse the Court of judicial activism (Hartley
1999, Rasmussen 1986), a modest notion of coherence highlights the virtues
of the reasoning of the Court, including the use of policy arguments. This is
so, since the Court takes a comprehensive account of reasons, which is nec-
essary to promote coherence in legal reasoning. The Court rightly refers to
authority reasons and substantive reasons: values and principles. Rather
than conceiving principles as rights conferrers and different from policies,
the Court consider principles as both arguments of rights and arguments of
policy. The Court does not approach rights and policies as distinct and
mutually opposed spheres, but rather as interlocking spheres, for both can
be connected in order to elaborate coherent supportive structures.
Granada Law Faculty

Department of Administrative Law
Plaza de la Universidad s/n
18071 Granada, Spain
lmoral@ugr.es
References
Aarnio, Aulis. 1987. The Rational as Reasonable. Dordrecht: Reidel.
——— . 1997. Reason and Authority. Cambridge, Mass: Harvard University Press.
Alexy, Robert. 1992. Rights, Legal Reasoning and Rational Discourse. Ratio Juris 5:
143–52.
——— . 1996. Theorie der juristischen Argumentation. Frankfurt: Suhrkamp. (1st ed.
1978.)
——— . 1998. Coherence and Argumentation. In On Coherence Theory of Law. Ed.
Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Wlodek Rabinowicz and Jan
Wolenski, 41–9. Lund: Skrifter utgivna vid Juridiska Fakulteten i Lund n. 131.
Alexy, Robert and Aleksander Peczenik 1990. The Concept of Coherence and Its
Significance for Discursive Rationality. Ratio Juris 3: 130–47.
Bankowski, Zenon. 2001. Living Lawfully. Love in Law and Law in Love. Dordrecht:
Kluwer.
Bankowski, Zenon and Emilios Christodoulidis. 1998. The European Union as an
Essentially Contested Concept. European Law Journal 4: 341–54.
Dworkin, Ronald. 1986. Law’s Empire. London: Fontana.
Edward, David. 1996. Judicial Activism: Myth or Reality? In Legal Reasoning and
Judicial Interpretation of European Law. Ed. Angus I. L. Campbell and Meropi
Voyatzi, 29–67. London: Trenton.
Günther, Klaus. 1995. Legal Adjudication and Democracy. European Journal of
Philosophy 3: 36–54.
Habermas, Jürgen. 1996. Between Facts and Norms. Cambridge: Polity.
Hartley, Trevor C. 1999. Constitutional Problems of the European Union. Oxford: Hart.
Kagan, Shelly. 1989. The Limits of Morality. Oxford: Oxford University Press.
Levenbook, Barbara. 1984. The Role of Coherence in Legal Reasoning. Law and
Philosophy 3: 355–74.
MacCormick, Neil. 1984. Coherence in Legal Justification. In Theory of Legal Science.
Ed. Aleksander Peczenik et al., 235–51. Dordrecht: Reidel.
——— . 1994. Legal Reasoning and Legal Theory. Oxford: Oxford University Press.
(1st ed. 1978.)

——— . 1999. Can Judges Make Mistakes? In Rechtsbegründun–Rechtsbegrüdungen.

Ed. Heike Jung and Ulfrid Neumand, 76–89. Baden-Baden: Nomos.
Peczenik, Aleksander. 1983. Grundlagen der juristischen Argumentation. Berlin:
Springer.
——— . 1988. Legal Reasoning as a Special Case of Moral Reasoning. Ratio Juris
1: 123–36.
——— . 1998. A Coherence Theory of Juristic Knowledge. In On Coherence Theory of
Law. Ed. Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Wlodek Rabinowicz
and Jan Wolenski, 7–16. Lund: Skrifter utgivna vid Juridiska Fakulteten i Lund n.
131.
Rabinowicz, Wlodek. 1998. Peczenik’s Passionate Reason. In On Coherence Theory of
Law. Ed. Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Wlodek Rabinowicz
and Jan Wolenski, 17–24. Lund: Skrifter utgivna vid Juridiska Fakulteten i Lund
n. 131.
Raz, Joseph. 1994. The Relevance of Coherence. In Joseph Raz, Ethics in the Public
Domain. Essays in the Morality of Law and Politics, 277–325. Oxford: Clarendon.
Rasmussen, Hjalte. 1986. On Law and Policy in the European Court of Justice: A
Comparative Study in Judicial Policymaking. Boston: Martinus Nijhoff.
Summers, Robert. 1978. Two Types of Substantive Reasons: The Core of a Theory of
Common-Law Justification. Cornell Law Review 63: 716–24.
Sunstein, Cass. 1997. Incommensurability and Kinds of Valuation: Some Applica-
tions in Law. In Incommensurability, Incomparability, and Practical Reason. Ed. Ruth
Chang, 234–54. Cambridge: Harvard University Press.
Taylor, Charles. 1971. Interpretation and the Sciences of Man. Review of Metaphysics
25: 3–51.
Veitch, Scott. 1998. Doing Justice to Particulars. In Communitarianism and Citizenship.
Ed. Emilios Christodoulidis. Aldershot: Ashgate.
Wisdom, John. 1944. Gods. Proceedings of the Aristotelian Society 45.

Coherence

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Coherence

Uploaded by

Copyright:

Available Formats

Ratio Juris. Vol. 16 No.

3 September 2003 (296–323)

A Modest Notion of Coherence in

© Blackwell Publishing Ltd 2003.

based on a poor understanding of coherence in legal reasoning, or at worse,

1 Claiming Coherence for the European Court of Justice

© Blackwell Publishing Ltd 2003.

© Blackwell Publishing Ltd 2003.

1.1 Coherence of the Legal System and Coherence of Adjudication

1.2 Idol or Ideal?

© Blackwell Publishing Ltd 2003.

© Blackwell Publishing Ltd 2003.

the principle of the uniform interpretation and application of EC law, and

2 Global, Local and In-Between Notions of Coherence

© Blackwell Publishing Ltd 2003.

fied—expressing a coherent conception of justice and fairness” (Dworkin

© Blackwell Publishing Ltd 2003.

coherence. However, law as coherence,—i.e., as integrity—means that law

© Blackwell Publishing Ltd 2003.

3 Coherence: A Modest Proposal

© Blackwell Publishing Ltd 2003.

for the sake of a greater operativeness. By a modest notion of coherence is

© Blackwell Publishing Ltd 2003.

The claim to correctness means a claim to justifiability: Legal justification

4 Packing the Suitcases

© Blackwell Publishing Ltd 2003.

4.1 Comprehensive Account of Reasons

© Blackwell Publishing Ltd 2003.

secure states of affairs which are conceived to be desirable (MacCormick

© Blackwell Publishing Ltd 2003.

solution. It rather approached the case as “a conflict inside coherence”

4.2 Supportive Structure of Reasons and Its Properties

© Blackwell Publishing Ltd 2003.

ECR I-4431), there was an agreement as to the restrictive effects on trade

reasons as cumulation-netting. Related to this property, Alexy and Peczenik

principle of self-sufficiency, and international law which also refers to the

© Blackwell Publishing Ltd 2003.

compatible with the preservation, protection, and improvement of the

© Blackwell Publishing Ltd 2003.

4. Priority orders between reasons. These have to be established in the event

© Blackwell Publishing Ltd 2003.

© Blackwell Publishing Ltd 2003.

(Alexy 1992, 150). The importance of such a new understanding of propor-

© Blackwell Publishing Ltd 2003.

© Blackwell Publishing Ltd 2003.

justification of premises can be explained by the non-acceptance of circu-

5 The Limits of a Modest Notion of Coherence. Or its Qualities?

Indeed, a judicial justification can be coherent at time t1 whereas at time t2

© Blackwell Publishing Ltd 2003.

cohere?” As such, this question shifts the interest towards justification.

Granada Law Faculty

© Blackwell Publishing Ltd 2003.

——— . 1999. Can Judges Make Mistakes? In Rechtsbegründun–Rechtsbegrüdungen.

© Blackwell Publishing Ltd 2003.

You might also like