O Fututo do Constitucionalismo - Caderno de Resumos [2014][l]

Argumentos consequencialistas e argumentos extrajurídicos na jurisdição constitucional • 191
tion. In the case of the economic argument the best alternative is
not the one that is most used in the economic community, but the
one that has a better match with the aims of the law. The reasoning
used in antirust cases is a good example of a juridical option between
conflicting economic arguments. We also need to focus on local coherency
instead of global coherency. Although Maccormick’s proposition
is grounded on global coherency it is possible to find support
in his writings for local coherency, mainly in his differences with
Ronald Dworking 5 . Another issue is the use of incomplete theorized
arguments as developed by Cass Sustein 6 , which can be applied not
only to juridical arguments but also on extrajuridical ones. In this
context it is possible to design a judicial reasoning that includes consequentialist
reasoning and extrajuridical arguments and maintain
the control of the judicial activity with the three C’s from Maccomick’s
theory (consequences, coherency and consistency requisites).
In this framework we can conclude that economic arguments
can be included in judicial justification as a scientific ones and the
judge must choose between the available scientific theories. This
choice must be made with publicity, so the reason of choosing a certain
scientific theory must be part of the process of giving reasons.
In the perspective a substantive pattern of justification is necessary.
The use of local coherency and incomplete theorized arguments provide
a way of reducing complexity. This solution provides a model of
judicial reasoning capable of dealing with the challenge of bringing
extrajuridical arguments in the judicial reasoning.
References
MACCORMICK, Neil. Rhetoric and The Rule of Law: a theory of legal
reasoning. Oxford: Oxford University Press, 2009.
MACCORMICK, Neil; SUMMERS, Robert S. (ed). Interpreting Statutes:
a comparative study. Ashgate: Dartmouth, 1991.