New Trends in Constitutional Argumentation

The role of morality in legal interpretation is unclear and contested. According to the positivistic separation thesis, there is no necessary connection between law and morality, while non-positivists hold that there is a necessary connection. ‘Morality‘ typically refers, in this context, to correct morality. From the standpoint of correct morality, a moral norm is correct if and to the extent that it can be morally justified, independent from any authoritative issuance and/or social efficacy. By contrast, positive morality consists of a collectively held belief that something is moral or not. Positive morality is an empirical fact. The question arises which role which kind of morality can play in either positivistic and non-positivistic reconstructions of legal argumentation.

One of the problems of legal theory raised by the rights of nature is to determine their status. According to a fairly common and widespread definition, law regulates human conduct and organizes human societies. How can we think that law can regulate the conduct of nature or of elements of nature? To speak of the rights of nature is therefore ultimately to organize the life of humans and not of nature itself. As early as the 1970s, critics asked how these rights could be known? Who speaks for nature and what legal ontology implies admitting that nature must have a voice? It will still be humans who give a voice to nature and it will still be humans who act for nature. The problem is that nature does not exist. It is either a concept or a fiction. From this, some conclude that the rights of nature can only be natural rights and thus a reintroduction of morality into law.

This paper examines scenario analysis, a new argumentation technique used by the BVerfGE in recent high-profile cases, such as the so-called climate protection case (Klimaschutz) and other decisions on the fundamental right to intergenerational justice (Grundrecht auf Generationengerechitgkeit). After explaining the basic inferential structures involved in scenario analysis (e.g., identifying stakeholders and driving forces and isolating focal points, to name a few), the paper outlines a normative model for rational scenario design. In particular, the argument focuses on denoising and debiasing techniques to avoid unwanted variability, statistically unsound reasoning, and unrealistic scenarios. The normative model is used as a lens for evaluating the arguments developed by the BVerfGE.

In my talk, I will investigate benefits, risks and prospects of the use of AI in courts, in particular in the decision-making phase. After a brief explanation of the difference between “expert systems“ and “machine learning“, I will distinguish between two types of AI tools currently used in the field of justice: predictive case law analysis tools, which manage sentences through machine learning techniques, and risk assessment tools, used to predict future criminal behaviors, which are mostly diffused in the North American judicial systems. I will argue that while the first ones are essentially unable to substitute the judge‘s decision-making, as this would illogically lead to substitute a “decision“ with a “prediction“, the second ones instead are suitable for their intended function, namely, to make statistical predictions about future facts.

The international treaties of human rights constitute a particularity in the international law because their main bearer are not the states, but rather the individuals inside the state parties. The state parties, as addresses of the international instruments, have specific duties emanated from the human rights and, therefore, have become a key element for their effectivity. The international human rights have the character of typical international dispositions. However, the particular content of the international human rights has enabled them to have a different compliance at the municipal level and it could raise a claim of the ideal dimension that they guarantee. This could contradict the predominant positivistic conception of the international law. This strict positive approach has been challenged by the use of the proportionality test.

The purpose of this paper is to examine the role of cities in attempting to stop climate change and their constitutional ability to perform international agreements in the light of state constitutional provisions.