Balancing the un-balanceable: argumentation and the right to justification in legal dilemmas

In this paper I aim to analyse the features and elements of legal argumentation in so called tragic cases and legal dilemmas (Atienza 1997; Zorrilla 2007; Zucca 2007; Jeutner 2017) where the legal norms able to solve such cases are of difficult finding and application. So in tragic cases discretionality as normally understood, a choice between legally and morally legitimate options, seems to fade out. Due to the the non liquet obligation featuring in most legal systems, a decision must be anyway assured. At the same time any verdict must become a binding decision somehow justified. From this point of view, recurring to balancing or some sort of «weight of reasons» seems to be unavoidable even if apparently counter-intuitive in such «more than hard» cases». The problem at this point is how to reconcile peculiar features of so called tragic cases with the duty of justyfing a legal decision reaching at least a minimum threshold of rationality according to the ideal of the rule of law. In this paper I defend the thesis that are the argumentative patterns chosen that can become the ground for the legal decision, even if this moves us far from the usual depiction of solution of a case as an application of the rule most suited for it.