On Coherence Of Legal Argumentation

The basic requirement of modern law's spirit is that, any legal decision, especially judicial decision must have justifiability. That also is, the correctness of decision should be supported by plenary reasons. This requirement brings on that coherence theory has an important position in legal argumentation. Coherence is one of "must" requirements which are principle requirements in legal argumentation.In chapter 1, we summarize the studying status about coherence theory in philosophy and law. In philosophy, coherence theory is talked about in the areas of truth and epistemology. In the area of truth, coherence theory is one truth which developed by criticizing correspondence theory. In the area of epistemology, coherence theory is one justification manner to proposition which is different with foundationlism. In recent day, foundherentism fuses the two theories which are opposite one another traditionally. Foundherentism both pay attention to the role of experiential proposition in the course of justification, and combine the theoretical advantage of foundationlism. And then, foundherentism is one possible theoretical direction.In the base of deeply criticizing to the position of correspondence theory which is insisted by legal realism, coherence theory is attached importance to in the area of law. Legal realism claims that, the reason why one legal norm is valid is the fact that this norm as one valid legal norm is accepted by legal community. But, the validity of normative proposition which differ with factual proposition is difficult to determinant by the criterion of correspondence theory. It should be talked about in the area of coherence theory. Coherence theory in law may be divided coherence of the legal system and coherence in the legal argumentation. These two forms have much differentia, but support one another also. Legal argumentation theory grows up in recent decade's years. This theory offers widely theoretical space for coherence theory. So, scholars discuss mostly coherence theory in the frame of legal argumentation.In chapter 2, we talk about the reasons why we insist on coherent standpoint in legal argumentation. The basic property of legal argumentation is argumentation, not demonstration. And then, the reasonable reasons which justify judicial judge must be on-limits and plural. Many out-law reasonable reasons which take the form of "legal principle" shall affect justification of judicial judge. The properties of argumentation of legal argumentation represent two aspects. One is the defeasibility of legal norms; the other is importance of subjective factors in the course of legal applying.In microcosmic level, all legal norms are defeasible in the sense of being changeable. And then, legal knowledge is one uncertain system. So, the coherent degree of connection among reasons becomes important factors which affect the quality of argumentation. In macrocosmic level, scholars pay attention to ontological problems traditionally, for example, what is law, what is law's essence. This reflects that the psychological demand of law's certainness resort to the maturity of one objective system. This standpoint neglects the importance of subjective factors in the course of understanding law, describes falsely the property of legal system. The theory of hermeneutics makes it renew that it is reasonable that subject and subjective behavior's ideological, sociological, and psychological property has influence to understanding behavior. This make us think over the follow factors in the course of studying justification to judicial judge. On the one hand, we should consider the reasonableness of positivism law which constitutes the main reasons of judge. On the other hand, we should also consider the influence to judge from the above mentioned subjective factors. So, we have to pay attention to the essence of legal understanding from the essence of law. Accordingly, the criterion which be used to estimate the correctness of judicial judge also turns to coherence under holisticism thinking model from analysis under legal positivism thinking model.In chapter 3, by analyzing Balkin's legal understanding theory, we state particularly the important role of legal subject in the course of legal understanding and legal argumentation. This establishes our basic standpoint to study coherence theory in legal argumentation, that is, we must consider fully the subjective factors' influence to the coherent degree of legal argumentation from the view of epistemology.Studying law at the view of subjective is the start place we should insist. This standpoint recognizes that, the study on law's essence connects our ideological, sociological, and psychological status when we understand legal system. This standpoint recognizes also that, instead of seeing legal coherence as a preexisting feature of an object apprehended by a subject, we should view legal understanding as something that the legal subject brings to the legal object she comprehends. And so, our question closely about whether law is coherent should start from the question that "how the coherent or incoherent judgment come into being". We should turn coherence theory in legal argumentation to epistemological standpoint from ontological standpoint. At epistemological standpoint we should take the different forms of rational reconstruction or rational deconstruction according to different purposes. And then, we should deeply criticize singular internal perspective in traditional jurisprudence, insist pluralistic truth. In the course of justifying the correctness of legal decision, we should consider many factors which include judges' ideology, politic and moral faith, legal knowledge frame, and others subjective factors. Attaching importance to subjective factors' influence to the validity, rationality and acceptability of judicial judgments settle the theoretical precondition for thinking about audience and consensus in the course of coherent argumentation.In chapter 4, we explain the internal requirement of coherence and process of coherent argumentation by comparing coherence with consistency. Consistency means merely the no-logic-conflict among propositions. Consistency is the necessary condition, but not sufficient condition of coherence. In addition, coherence demands that many proportions must hang together and bring meanings in a whole. The claim of correctness of legal decision imply that, this decision must be deduced from valid legal system, and that, this decision must be reasonable and fairly. Judicial decision should be deduced from valid legal system, this requirement is mostly demand of consistency. The reasonableness of judicial decision is from the reasonableness of normative precondition. The reasonableness of normative precondition is from the coherent support by others legal rules, prejudication and experience or rational rules out-of-legal system. The course that decision is deduced directly from legal rules is one linear justification process. Comparatively, thinking over the support to legal rules from many different factors is one holistic justification process. In different case, reasons may support decision in different coherent degree. And then, coherent argumentation has the property of degree.The course of coherent argumentation indicates that, the justification force by multi-preconditions to legal decision doesn't be accepted by subject until both that these preconditions form support each other and that these preconditions are knew and mastered by subject. So, the course of coherent argumentation stops at the supposition that epistemological subject grasps his faith system. The description about the criterion of coherence does not aim at present some concrete technical criterions about coherent argumentation, but does aim at that, coherence theory in legal argumentation does not one pure abstract and unavailable theory, but one concrete and available justification criterion, and then this theory has practical maneuverability in some sense.In chapter 5, we discuss that, the achievement of coherent situation of legal argumentation hang on "epistemological subject grasps his faith system", and then, coherent argumentation has the property of strongly individual ideology. On the base the above mentioned, the theory of coherent argumentation has three embarrassment. The first one is that, how we discriminate between one reasonable coherent judicial faith system and one prejudice coherent judicial faith system? The second one is that, how the judicial faith system which emphasizes the inherent coherence of epistemological subject reflect the development of outer objective world? The third one is that, how to overcome the embarrassment of a vicious circle?Face to these embarrassments, we resort firstly to the concept of "consensus", and absorb the faiths which have the position of consensus into the system of judicial argumentation. The experiential property of consensus may overcome the condemnation of "coherence cut off the relation between the faith system and outer experiential world". The fundamental status of consensus may prevent that coherent argumentation slip into the lair of a vicious circle. But, consensus can only reply to these two condemnations in the abstract sense. In the concrete case, the faith of consensus has the property of instability because that itself content shall change along with the development of social status. So, we should guarantee the function of consensus with procedural rules and maximize the stabilization of consensus by rational discourse. We also grow up consensus by rational discourse when lack consensus. Abiding by rational and procedure discourse rules can offer rational guarantee to the forming and stabilizing of material consensus. Therefore, we may think approximatively that, we can obtain affirmatory and correct conclusion by complying to rational discourse rules, and then avoid appearance of the two faith systems which contrary each other but coherent each one.Face to these embarrassments, we should find answers in the material and procedural ways. Consensus ensures the material content of coherent argumentation and then makes coherent argumentation system communicate with the development of outer world, and then at this time avoids slipping into the lair of a vicious circle. Discourse rule ensures the procedural of coherent argumentation and makes it continue rationally. Both consensus and discourse rule must combine each other and then realize the coherent state of legal argumentation in the most extent.We don't realize coherence of legal argumentation until we insist on subjective standpoint. This judgment is on the base of admitting to human's independent spirit which should be distinguished with the adoring psychology to "justice" and "providence" in the traditional legal culture in China. We should distinguish the holistic standpoint which be insisted in the procedure of coherent argumentation with our traditional collectivism. As one perfect argumentation model, coherent argumentation has the function of commenting and checking out practical argumentation.