MACCORMICK'S ARGUMENTATIVE THEORY FOR STRENGTHENING THE RULE OF LAW AND FACING LAWFARE

One of the ways to face lawfare is to claim rationally reasoned court decisions. Among the argumentative theories, MacCormick's theory is defended as a valid alternative for this purpose. MacCormick understands the law as an institutional and practical normative order, subject to change (defeasible). By admitting the dynamic nature of Law, he proposes a reconciliation with the principle of legal certainty, which for him is the greatest value of the “Rule of Law”. Thus, he proposes an argumentative theory founded on a rational logic capable of fighting “interpretivism”, through the formulation of objective and skillful criteria to rule out inadmissible decisions. These criteria that sentences must meet are coherence, consistent and universalizability. In this way, the decisions issued by the jurisdictional authority will be valid, impartial, and respected in the face of a controversy about the content of a rule, its practical context, or its application in a specific case.