New Trends in Constitutional Argumentation
This panel examines recent trends in constitutional argumentation, with an eye to the European debate. In particular, the papers look at new patterns of reasoning developed by the judiciary to deal at the constitutional level with pressing social issues such as climate change, algorithmic justice, and the new role of jus cogens in international law. These social issues raise legal conundrums that courts are resolving using unprecedented methods such as scenario analysis, new naturalistic justifications for legal validity, risk assessment tools, and recognition of “metaphysical“ unenumerated rights. These new patterns and trends, in turn, raise substantive theoretical issues concerning, first, the role of experts and scientific reasoning in judicial lawmaking and, second, the contribution of morality and ideology in the formation of legal doctrines. The panel offers both a general reconstruction and a theoretical examination of the inferential schemes presupposed by these new trends.