ARGUMENTATIVE RATIONALITY AGAINST LAWFARE
The conception of principle-norms introduced by neoconstitutionalism have provoked that the ideal of Modernity of a correct solution for each case is no longer maintained. It is precisely in this context that the lawfare – use of Law to persecute the political enemy – can succeed, since it opens the possibility of the judge to concretize a norm-principle based on his own values or convictions. Against that, it is necessary that judges construct their sentences with rational arguments. However, one should not confuse legal and political rationality. MacCormick teaches that political rationality “looks forward the future“, while legal arguments “look into the past“. The purpose of this panel is to discuss the elements necessary for a sentence to be considered rationally grounded and, thus, to avoid falling into judicial bias around what turns the lawfare.