The right to justification and the Rule of Law: towards a 'justifiable' legal argumentation theory
| Autor | Rafael Cascardo Cardoso dos Santos |
| Ocupação do Autor | Undergraduate student of State University of Rio de Janeiro (UERJ) |
| Páginas | 751-773 |
Special Workshop: e political activity of judiciary • 751
The right to justication and the Rule of Law:
Towards a “justiable” legal argumentation theory
Rafael Cascardo Cardoso dos Santos1
Abstract: The fundamental core of moral rights is far from being an undisputed
maer among philosophers and scholars in general. Here, I intend to show a
possible interpretation of moral rights as having a common ground: the right
to justication. The whole construction of this argument relies upon Rainer
Forst’s book: The Right to Justication. In the mentioned book, the author de-
fends that the content of this right is reconstructed by looking at the contexts of
people’s relations in society. Although rstly developed in the moral context, I
also look to show how this right could be applied to the basic structures of soci-
ety (here I also rely to Rainer Forst’s ideas, however, in a more loose manner).
Institutions, however, are limited in internalizing the requirements of the right
to justication, since they work inside a pre-established design and not in a
pure normative way. Considering these limitations, I will try to show how the
Legislative and the Judiciary could act in harmony to enforce this right and to
help each other in a synergistic manner. To justify the application of the moral
notion of the right to justication to institutions, a parallel between this right
and the Rule of Law is a useful resource, since the concept proposed here of Rule
of Law seems to be close to what we could call an institutional ground to the
right to justication. Finally, I will expose how the growing studies on legal
justication and argumentation theories could improve with the normative idea
of the right to justication. By doing so, my goal is not to show a correct legal
argumentation theory, but rather to give an important ground to construct
analytical rules and principles of justication in legal reasoning.
Keywords: Justication; Political Constructivism; Rule of Law
1. Introduction
Prior to starting the work itself, I will briey outline its sections.
Firstly, the components of a moral right to justication will be exposed
and analytically decomposed. In this rst part, I will focus on the idea
1
Undergraduate student of State University of Rio de Janeiro (UERJ).
752 • XXVI World Congress of Philosophy of Law and Social Philosophy
shown by Rainer Forst on his book The right to Justication. Following
this rst description of Rainer Forst’s normative conception of the foun-
dation of moral and human rights, the second part shifts its aention to
the basic structures of society. This part will show, by the method of po-
litical constructivism, how institutions – notably the Legislative and the
Judiciary bodies – ought to play its roles inside the requirement of the
right to justication and the Rule of Law. There are limits that prevent
an institution from achieving an optimal result in theirs deliberative ac-
tivity and these limits will be exposed not only descriptively, but also in
order to suggest ways of making a beer deliberation process. Further-
more, I will draw some remarks on Brazil’s recent institutional experi-
ence and try to diagnose its problems with the help of the approach of
the right to justication to political/judicial institutions. Finally, the last
section is focused on legal argumentation theories and how they could
be aected by the right to justication.
2. The core of moral rights: the basic right to justication
Rainer Forst formulates the right to justication as being the
ground of morality, which “lies in the re-cognition of the human re-
sponsibility to reciprocally and generally justify one’s actions in moral
contexts in relation to all others aected”2. Moreover, he emphasizes
the fact that the action must be reasonably (which means generally and
reciprocally) non-rejectable rather than acceptable. This right has two
important consequences, one as being positive and the other negative:
it grants the aected a right to say in the maer (positive aspect) and
a – qualied3 - veto right against norms and structures that cannot be
justied within the two exposed criteria and bring the disadvantaged
unjustiable inequalities (negative aspect).
The rst important idea is the criteria of reciprocity and general-
ity. According to Forst, reciprocity “means that no one may refuse the
particular demands of others that one raises for oneself (reciprocity of
content), and that no one may simply assume that others have the same
values and interests as oneself or make recourse to ‘higher truths’ that
are not shared (reciprocity of reasons). Generality means that reasons
2
FORST, Rainer. e Right to Justication: Elements of a Constructivist eory of Jus-
tice. Translated by Jefrey Flynn. Columbia University Press, New York, 2012. p. 42.
3
Rainer Forst characterizes this right as ‘qualied’ “in the sense that the moral appeal as
‘veto’ itself must observe the criteria of reciprocity and generality”. p 214.
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