The Duty and Right to Justification in Legal Dilemmas

Legal dilemmas seem to capture a paradox apt to illuminate some important challenges for contemporary law. While the hyper-juridicisation of social life grew in most legal systems, its capacity for providing legal answers is in decay and slowly being substituted by a set of “normativities” (Ost 2016) in which boundaries between law and non law became blurred along with the contested distinction between easy/hard cases (Linhares 2017). In this paper I will analyse the features and elements of legal argumentation in so called tragic cases and constitutional dilemmas (Atienza 1997; Zucca 2007). In such circumstances legal norms able to solve such cases are of difficult finding and application. Grounding on theories of legal argumentation in contemporary legal thought, I will try to show how it is possible to argue for a “right to justification” in legal dilemmas. This right to justification (Forst 2011; 2017), because of the non liquet obligation in most legal systems, should be granted through a justified decision. In this paper I defend the thesis that are the argumentative patterns chosen that can become the ground of the legal decision, even if this move us far from the usual depiction of the solution of a case as an application of the rule most appropriate for it.