1 A Reflection on the Meaning of Judicial Adjudication: Syllogism, Consequentialism, and the Possibility of Judicium

Reflecting on the problem of judicial adjudication, now specifically seen as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a (normativistic-positivistic) syllogistic reference of facts to norms, and finalistically determined decision, as an option between possible alternatives to achieve specific aims—, means assuming a specific concept of law, of its practical realization and of the corresponding legal thinking. The main objective intended in this reflection, in order to accomplish the aforementioned aim, is to discuss the methodological proposal presented by Ronald Dworkin and the critical reflection on the criticism(s) to that approach levelled by Neil MacCormick (Sect. 1.1), and, beyond these, to propose an alternative comprehension to that of the practical realization of law, anchored in a specific autonomously material comprehension of law and of legal systems, inspired in the version of jurisprudentialism presented by Castanheira Neves (Sect. 1.2).

The meaning of judicial decision will mainly be considered here, and, in this sense, the questions presented by the relationship between the legal system and the legal problem(s), mostly through and analysis of the meaning of “integrity”, “hard cases” and “right answer”, as presented by Ronald Dworkin, and by a critical reflection on the criticism(s) to that approach presented by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system (Sect. 2).

1.1 Beyond Deductive Application and Finalistic Decision: A Dialogue Between Neil MacCormick and Ronald Dworkin

Neil MacCormick proposes, differently from Ronald Dworkin, the possibility of weighting principles, in which one may prevail without requiring the other or others to lose their validity, and the impossibility of an analogous situation in the case of a conflict of “rules” [23: 155–156, 3: 14–80], a view of “legal rules” aimed at a particular purpose which are taken to be valid, or a general form of conduct that is considered desirable, and the expression of that purpose or that way through a general normative enunciation (“a general normative statement”) translates the enunciation of a legal principle (“the principle of the law”) underlying them [23: 166]. Therefore, it will be not so much the balance between principles but rather the interaction of arguments of principle with arguments of consequentiality that will allow the decisions of the “hard cases” to be justified—the situations in which the «rules» would be insufficiently clear or in which the characterization of the facts was itself questionable, or even when there was controversy about the question of the existence or inexistence of legal basis for a certain case, there would be room for a «the second-order justification» , always maintaining the need for coordination with the directives of coherence and consistency [23: 100–116, 129–194, 22: 99–112].

Consequently, on the one hand, a judicial decision, meant as constitutive and not merely declarative, is not bound by deduction starting from rules, but by the reasons justifying the mobilization of rules, which, as consequentialist considerations of its objectives—and, thus, policy dimensions—will be determined by the content of the rule itself, constituting the normative expressions of such reasons- «policies» justifying and rationalizing statements of legal principles (“Statements of ‘legal principles’ are normative expressions of such rationalizing or justifying policies”) [23: 166]. Such a decision, intended in this way, is, therefore, subject to restrictions, not freely constitutive but interstitially constitutive, and thus restrictively innovative, different from the legislative establishment of law [23: 187–191].

On the other hand, the analogical mobilization of «rules» in the area of “case law”, as a binding precedent system, would itself be analogous to the analogical mobilization of “rules” of “statute law” [23: 194]—and, thus, both subject to the double requirement of valuating argumentation, and, hence, coherence (“(…) some good evaluative argument for the decision give, minimally the value of coherence in the absence of any countervailing consideration (…)”.)—, and of justifying the admissibility of mobilizing analogy arguments or legal principles as the support for future decisions (“Secondly, there must be some general reason why arguments by analogy or from legal principles should be conceived as providing “legal support” for novel decisions, in the sense of being necessary conditions of their permissibility, rather than making them obligatory as do directly applicable mandatory rules”.) [23: 186–187].

A distinct requirement here will then be consistency, taken in the strict sense, as a limit to the convening of consequentialist arguments when these contradict the fundamental rules of the system [23: 106], then translated into the theme of interpretation and into the problem of the corresponding determination of cases as “easy” (“clear cases”) or “difficult” (“hard cases”) [23: 195]. The first type of cases would be decided by deduction [23: 199–200], whereas for the second interpretative rules could be established, which would allow not (always) selecting the sense closest to the literal one, in order to achieve, in the light of principles and/or of consequentialist arguments, other senses. The obvious problem would then be to admit the existence of cases of the first and of the second type and to define the boundaries between them—this would result from the conjunction of the ideal of coherence with the ideal of consistency [23: 227–228].

Admitting that, in the case of «statute law» , the very clarity of the literal meaning of the legal norm would also be liable to arise from its reference to the meaning conferred to the principle or principles that inform it [23: 205], many meanings would hypothetically be available to the interpreter. This would, in turn, require on the one hand an effort to maintain linguistic consistency between the text of the enunciation and the meaning to be given to it, and on the other hand the combination of consequentialist and/or principle reasons in the intended interpretive sense [23: 206–213]. And, between the interpretation of precedents—“case law”—and the interpretation of statutes, the difference would not be a question of gender, but of degree [23: 213]. Besides, the interpretation of statutes would often be conditioned by precedents [23: 215].

Therefore, MacCormick concludes, as does Richard Posner, that the interpretation of (and the consequent decision on the basis of) “statute law” is different from the interpretation of “case law” because of the binding force of the literal element, present in the first and absent in the latter [23: 221, 53–72] (referring to [51: 58–59, 72, 100, 105]), [49: 247–261, 262–285, 14: 22–23]. Concluding also that—something that is not entirely negligible here—that interpretation must submit itself to the arguments of principle, supported, at least partially, in which it will be stated whether the sub judice case is “clear” or “hard” [23: 231]. In this sense, both these approaches are different from the one presented by Joseph Raz, which locates the fundamental difference between “common law” and “statute law” in the easier reversibility of the first when compared to the latter—given the strict binding force of the ratio decidendi in the singular mobilization of precedent for the case sub judice, in view of the generality of statute law [50: 180–209, 194–197, 207]. Notwithstanding, it is recognized that there is a bind of continuity between the application (“law-applying”) and the judicial creation of law (“legislative and judicial law-making”) [50: 206–209].

Thus, concerning the meaning and content of principles, MacCormick affirms—in addition to saying that this thesis leaves unexplained the analogous application of rules—, differently from Dworkin, that, in terms of interpreting, the rules effectively compete with principles, and will not be invalid in the case of non-application, considering that it is possible to distinguish the delimitation of the application field of a rule in a given context for determining its validity or invalidity; even admitting that a rule may involve the delimitation of the meaning of a principle and be applied to the detriment of this one, when it might be contextually justified. Agreeing with Dworkin on the assertion that judicial decisions refer to rights, MacCormick distinguished, on the one hand, between legal rights based on rules (“rule-based rights”) and legal rights based on principles (“principle-based rights”), and, on the other hand, moral and political rights, which would be mainly based on principles [23: 230–232] (referring to [21: 256–258]).

However, like Dworkin, MacCormick affirms that judges do not have (or are not burdened with) “‘strong’ discretion” before “hard cases”, but only “‘weak’ discretion”, though not exactly in the same sense. Indeed, if for Dworkin “‘strong’ discretion” would imply deciding in the light of the arguments that would appear to the judge to be best suited to the case, for MacCormick “discretion” would always be limited by the argumentative requirements of the system—principles, consequentialist arguments and the “consistency test” [23: 251]. In addition, and unlike Dworkin, MacCormick asserts that the possibility of presenting different possible solutions for “hard cases” does not raise a primarily theoretical disagreement, «speculative» , and, as a result of this, “practical”, but primarily practical—not simply practical, but practical in a limited sense, in the light of the binding force of rules—, concluding, argumentatively, by the “right solution” (“right answer”) in a case [23: 246–250, 265–274, 10: 31–32, 68–71].

In short, for MacCormick, if in the simplest cases, in which there was no controversy concerning the clarity of a criterion-“rule” and its applicability, it would be enough to prove the facts, and the criterion would be applied in the light of a deductive argumentation [23: 19–21]. But in the—very common—cases where there was controversy concerning the clarity of the criterion, there could arise problems of interpretation or of classification. In these cases, the justification of the decisions would have to go beyond the mobilization of the validity theory—the “rule of recognition”, rectius, “institutive rule”—and mobilize the arguments coming from legal principles or from analogy—and, in this sense, “coherence”—to justify the decision; this would be necessary, but not sufficient, to accomplish such a justification, so, a consequentialist argument should additionally be invoked, which should take part in the justification of the decision. And a third argument should also be invoked, namely one of “consistency” (in the absence of principles or analogy that could justify the decision)—the “consistency test”, through which it would be determined whether the criteria in question would refute any established rule of law or not, given an “adequate” interpretation or explanation (“‘proper’ interpretation or explanation”) of such a rule in the light of the “principles” and “policies” [23: 250, 24: 190–193].

The policies now in question are not the collective goals considered by Dworkin, but a set of effected actions to achieve an objective [23: 259, 10: 90, 23: 263–264]. And the fundamental principles express the essential rights of the human condition—thus constituting the principles of the so-called human rights, as the basis for a theory of justice [23: 259]. This does not necessarily mean that all principles are referred to rights, as this is not the case of many less fundamental principles, nor does it entail a definition of policy involving an opposition, artificially, between “policy” and “principle” [23: 264]. But all this presupposes, after all, that legal thinking is a kind of moral thought, albeit with institutionalization and formalization features [23: 272, 274]. And all this also implies two types of coherence, relevant to the decision-making process—narrative coherence and normative coherence: the first—of particular importance in the field of legal evidence—of a diachronic nature; and the second of a synchronic nature [24: 229]. Nevertheless, with the latter—closer to Dworkin—, the link between the synchronic and the diachronic dimensions manifests itself as essential for achieving integrity [24: 233–236].

This paradigm of application, rendered in a subsumptive syllogism, convokes the essential major premise—translated into a universally rational statement expressed in the conditional structure of a norm—, the minor premise—as an actual subsumption of (discrete-isolated) facts to the hypothesis of the norm—, and the conclusion—as the correspondence of the application of the juridical consequence to that subsumption. This paradigm presupposes juridical reality as the field of application of legal norms, and these are set out as rational enunciations gathered in a self-subsistent and complete system, which would remain unscathed before their mobilization through that syllogism [35: 102–106, 31: 283–336, 4: 370–376, 763–775, 19: 45–46, 146–147].

In turn, the paradigm of decision implies conceiving the decision, on the one hand, as a finalistically oriented rational choice among possible alternatives, in order to achieve pre-defined objectives—and whose chance of effecting the results would be measured in concrete, through probability judgments, if and when these were possible, and assuming reality as a determinant of the direction of the option [35: 176–191, 36: 25–28]; and, on the other hand, as a conditional layout of application—an approach, though radically departing from different requirements, to the referenced paradigm of application [35: 189–190].

1.2 Judicative Decision as Judicium, Beyond Deductive Application and Finalistic Decision Making: The Jurisprudentialist Alternative Proposed by Castanheira Neves

Rejecting both the previous formulations, a paradigm of judgment will be followed here, focusing on the specific requirements of the sub judice case, starting from the latter to call upon the normatively available criteria and principles in an open and multi-dimensional system, as affirmed by Castanheira Neves. And all this presupposes reality in its normatively constitutive relevance, and, thus, dialectically reconstituting, in relation to this latter [35: 93–94, 20: 443–477, 475–477].

In contrast to the model of judge proposed by François Ost, according to which it must be emphasized that law is a specific discourse, with a specific hermeneutics [48: 241–272], the judge being personified as Hermes, the jurisprudentialist proposal, assumed here as the starting point, presupposes in its specific legal rationale not only an immanentist reading of hermeneutics but also a specifically judicative decision—argumentative, dialectical, practical-material and axiological-normative [30: 196]. This also means rejecting consequentialism as an autonomous methodological canon.

The concrete results, which may inspire adjudication and which can produce effects, are only accepted, in the jurisprudentialist approach we are considering here, as the specific legal effects that the decision will always have, as a consequence of the axiology of normative principles and the teleology of legal criteria: namely, the effects that the Tatbestand of the pertinent normative criteria prescribes and intends to be juridically assimilated (not as “external” and “real” empirical effects), demanding prior judgments or empirical-social prognosis, which may determine a social justification for the decision, will be, in this jurisprudencialist framework, subject to prior and dialectical-normative assimilation by the strata of the legal system—normative principles, legal norms, jurisprudential criteria (judicial precedents), dogmatic and legal reality [30: 197–205].

This understanding of the legal system also prevents an approach to the model of judge referred to by Ost as corresponding to Hercules—meaning rejecting its technological-functionalist perspectivation, and only closer to the setting that Dworkin gives it to the extent that the privileged knowledge of the legal system gives the court decision its essential integrity, no longer in the understanding of coherence that guides it. But this also entails rejecting the model of judge Hermes—since the hermeneutically analysed network, at this point, in spite of positioned nearer the jurisprudentialist legal system, in continuous development in the dialectic between normativity and reality, is too fixed in the narrative dimension, combined with a social-political approach of a fundamentally pragmatic character, not meta-normatively projecting a material meaning which may guide the normative delineation and the substantial determination of law, factors that are essential to the jurisprudentialist understanding of the legal system as the materially foundational horizon of reference and normative stabilizer of judicative decisions. Therefore, the effects of the judicial decision to be considered here present themselves as specifically juridical, resulting from the teleology of norms or other relevant juridical criteria, namely the effects that the pertinent normative principles and criteria take to be juridically assimilated by the system.

This jurisprudentialist option, axiologically-materially and practically-normatively outlined, is built from the autonomous reflection about practice that concerns law and the specifically legal content it mobilizes [37: 87–114, 106], with practical implications directly arising from the autonomization of normative principles and determining the understanding of the dialectical (re)construction of the legal system itself. This also means assuming directly the point of view of the concrete judicative-deciding realization of the law [30: 196–205], as a particular moment of reflection and articulation between system and problem, even between problem—the one stated in abstract in the foundations and criteria mobilized—and problem [30: 155, 2: 139]Footnote 1—the concretum that, spatio-temporally located, requires an answer from law—which will, in space and time, resist the centrifugal forces created, and centripetally connect the essential valuations that the law brings to the reality which challenges it [12: 91–103].

Proposing a practical-normative comprehension of the realization of law—neither a strict logically formal operation, nor a finalistically determined choice, but rather a specifically assumed judicative decision as a practical-rationally founded thoughtfulness (ponderation) [36: 93–94, 6: 335–373, 8: 337–359]—requires distinguishing it from deductive application and from finalistic decision making.

Concerning, thus, a pluri-stratified system as its normative horizon of reference, densified by and densifying the meaning of law, the treatment of legal reality will be stated as the juridical relevance of a controversy—whose elements are the subjects involved, the shared situation and the context-order [19: 3]. The shared situation is presented as a concrete case, whose juridical relevance will be measured, primarily, at the level of the question-of-fact—assuming the distinction between question-of-fact and question-of-law in the sense given by Castanheira Neves,Footnote 2 as correlated faces of the same problem, meaning that a juridically relevant controversy constitutes itself as a juridical problem, at first by reference to the meanings already conferred on law in the legal system, and then, despite that reference, by considering the questioning it presents towards that system. It will, then, be analyzed in its moments of determination of the field of juridical relevance of the case—meaning to understand whether the concrete problem can be configured as juridically relevant in the light of the presupposed legal system (and the corresponding qualification, that is, framing the case, once its juridical relevance is confirmed, in a particular dogmatic field)—and comprobation—meaning the determination of the truth of facts alleged in the case sub judice, not as a theoretical-scientific demonstration of truth, but comprobation of a practical truth, as intersubjectively significant [30: 163–165]. It will, consequently, be distinguished, still analytically, in the question-of-law, the question-of-law in abstract—whose object consists of determining the juridical criterion that will guide and contribute to founding the juridical resolution of the case sub judice (decidendo)—and the question-of-law in concrete—the problem of the concrete decision-making judgment (juízo decisório) that will decide this case—the question-of-law in concrete concerns the resolution of the case by mediation of this criterion, or, not being the case, performing, in the last term, the concrete legal judgment by autonomous normative constitution [30: 163–286, 40: 13–42]. All this means that the concrete judicative decision will mobilize the legal system as its normative horizon of reference [30: 159, 28: 11–58].

In the field of the question-of-law in concrete, the realization of law by mediation of the criterion-norm could be realized by assimilation by concretization, by assimilation by adaptation—extensive or restrictive—or by assimilation by correction—synchronic or diachronic. This means that there is no reference to deductive reasoning.

The relationship between criteria and juridical controversy is, hence, understood as specifically analogical. Therefore, there may be a non-assimilation of the relevance of the case by the criterion-norm—a situation that will lead to a normative overcoming by obsolescence. And, by reference to the normative foundations of validity of the criterion-norm, normative principles, there will also have to be considered the possibilities of correction—either synchronic or diachronic—, of preterition and of superation in accordance with the normative principles [30: 176–195]. In each of these possibilities, there is always an essential dialectical relationship between normative principles and legal norms, meaning between the ratio juris of the first and the ratio legis of the latter. And the judicium rests on the pondered adjudication the judge builds from that dialectical reflection.

Such a model of judicial decision presupposes a specific assumption of the construction and the role played by judicial decision within juridicity. This implies an option, by the invocation of that methodological model, for a justified demarcation of the multiplicity of possible alternatives, and their different meanings and results, and thus in face of other paradigms—such as the paradigm of application, characteristically stated in the positivist proposals, and the paradigm of decision, in functionalist determinations, either the material-finalistic or the formal ones [35: 103–106, 185–190, 36: 93–94].

This perspectivization of law, decisively inspired in the proposal presented by Castanheira Neves, nevertheless emphasizes, by reference to the proposal presented by Ost, mostly the differentiation of law both as a normative discourse and as a specific narrative, and the nowadays concomitantly essential inter-textuality, on the one hand, and the perception of the judicial judgment-judicium as a translation, on the other. Such a position’s practical implications in the effecting of the foundational principles in the legal system will reflect directly in—and will be determinant to—the subsequent discussion on the normatively legal relationship between normative principle and legal (juridical) criterion.

This approach represents, hence, a model of justice in which there is a continuously constructing axiological horizon of reference of what should and what should not be law, which states the validity of juridical (normative) principles, criteria and decisions. And a model of law whose practical accomplishment consists in a practical and normative conception of the realization of law—not a deductive application nor a finalistic determined choice, but a judicative decision, involving an axiologically founded juridical judgment [36: 93–94, 3: 73–122, 6]—, whose context-framework consists of a stratified legal system before which the juridically relevant controversy—the concrete problem posed to law—emerges [30: 165–286]. So, the judicative resolution of the juridical controversy consists in a dialectical relation between system and problem [30: 155–157, 1, 2: 139, 3: 110–122].

Thus, such a model of law claims its autonomy, as a critical reflection on social praxis, looking for normative stability among the hallucinating acceleration of events [43: 9–82, 10–14, 44: 101–128, 18: 391–429, 426–427]. Hence, not accepting a pure consequentialist proposal, in which the concrete results of the judicial decision—its effects—would be “external” or “real” (empirical) effects, requiring empirical social predictive judgments, rather affirming, differently, specifically juridical effects—those resulting from the specific teleology of law, e.g., the effects that the Tatbestand of applicable normative criteria predicts and requires to be juridically assimilated, subject to a previous, dialectical and normative assimilation, through the strata of the legal system (normative principles, legal norms, precedents, dogmatic, and legal reality) [30: 205].

2 Methodologically and Institutionally Stating the “Jurisdictional Realization of Law” as Judicium (Judicative Decision)

All that has been said means considering a judicative decision as an effective judgment—stated from juridical criteria—legal norms, judicial precedents, dogmatic criteria…—presupposing material foundational normative principles, meaning arguments of principle, which constitute a warrant of validity of those criteria, stating—positively—their meaning and content, and—negatively—their material and formal limits/boundaries.

This is an important part of the considerations, really the crucial one, though not the only one. There is the other side, for law has its own social-practical functions and normative tasks, states its own teleology, meaning its own thinking on consequences—though not strictly a consequentialism, in MacCormick’s terms, but, nevertheless, an effective reference to arguments of policy, though filtered to the legal system by legal thinking-dogmatic, turning, this way, to legal policy.

So, this does not mean law must directly accept—even absorb…—the aims, tools of understanding and rationality of other social orders and practices—such as morality, ethics, politics, technology, economy—, but it surely means that law is strongly influenced by the problems and answers that practical reality presents and the demands it requires law to fulfil. In this perspective, the judge appears in some way closer to Dworkin’s Hercules, as also here the judge’s privileged knowledge of the system confers upon the judicial decision its crucial integrity, but moving away from this conception concerning coherence [9: 469–518, 11: 225–275], going beyond coherence’s narrative sense, by normatively projecting the judicial decision more immediately in reality, as it is a dialectical relation between system and problem [32: 73–100, 93–94, 37: 105–106, 12: 100–103].

All this implies referring the jurisprudentialist construction of the legal system also as a methodologically essential horizon of reference. And that all its strata participate in the judicative decision. Therefore, normative principles, legal norms, precedents, dogmatic and legal reality all contribute to building the adequate judicium on the practical controversy. An adequate answer in a space–time context on the presupposition of the meanings present and allowed by the legal system—so, an adequate, not a strictly understood right answer, at least not in the meaning required by Dworkin’s “chain novel”.

Therefore, this way, thinking of law as an autonomous practical-regulative discipline, and as an effective answer to specific practical problems, requires, on the one hand, considering it as an objective, autonomously founded normative order, and, on the other hand, to state that this autonomy is not an absolute, but a relative one: the relative autonomy of law, thus, is presented and represented as the result of the combination of a specific legal system and the specific meaning of law it states, as its normative horizon of reference—the specific meaning of what law must be in a spatially and historically concrete practical community. It means, thus, affirming a specific normative principle stating a specific autonomous meaning to law—and filtering it with regard to the exterior demands it faces and receives—, meaning the problem of law in itself [27: 1–65]—so, a specific answer, an effective juridical answer, constructed from the relationships entailed between that normative horizon of reference and the significances and problems of those practices which require of law a guiding answer, meaning the problems of law, after that critical dialectically continuously constituting selection.

Normative principles, understood as values-projects, meaning essential vectors to the inter-subjectivity that defines juridicity, constitute practical constructions—which makes them, in this sense, self-transcendent—; and, more than that, as substantial intentions to validity, they are also to be considered as conditions of possibility for the project of constituting law in specifically contextualized space(s) and time(s)—which makes them, in this sense, self-transcendental… Normative principles are, then, identified as the material foundations always invoked to and presupposed by judicative decisions, whether there are defined objective juridical criteria or there are not. Normative principles must be, thus, understood as practical constructions and, simultaneously, as practical orientations, as axiologically normative foundations of a materially autonomous meaning of law in a juridical community—which makes them, also in this other sense, self-transcendental.

Such a reference to an autonomous meaning of law, as a tertium genus, constitutes an autonomous axiological foundation to law in its specifically juridical meaning, by substantially filtering the content of the legal system and its specific dialectics with reality, besides any reference(s) to morality (to political morality, or moralities), and requires—both in the philosophical and theoretical reflection of its justifications and, consequently, in its correspondent effective realization as a practical subject—a juridical translation of values as practical projects, understood as substantial values-projects and stated as normative principles [12].

Castanheira Neves proposes, then, a substantial-axiological basis which might be mobilized as a practical-rational resource, as an element aggregating likeness in the bottom of difference, not a mere establishment of rules of dialogue, not concerning substance. Such a dialogue presupposes, then, a reciprocal recognition, on the one hand, and, on the other hand, a material foundational autonomous matrix, culturally coined [44: 126–128, 29: 1 ff., 39: 9–21, 38: 837–871, 839, 33, 34: 1–44, 46: 9–79]—whose assimilation should, then, require, in the inter-civilizational dialogue, a material densification in a principle of translation, as Boyd White enounces it [52: 257], and, therefore, not merely a set of formal-procedural conditions of dialogue.

Accordingly, the possibility of law to be an answer to the juridical inter-subjectivity problems of our times may rest primarily, as it is stated here, in its characterization as a meta-normative reflection on social praxis, at some relative distance, and at its own rhythm, so as to be able to normatively project itself in practice, as a factor of the rationalization of inter-subjectivity [41: 146–147, 42: 199–318, 32, 44, 45: 202–221, 25: 725–764].

The understanding of law as a practical reflection and a practical realization presupposes, therefore, the reciprocal recognition of human subjects as legal persons, in their finitude, but also in their dignity, corresponding to a substantial-axiologically cement aggregating an authentic human conviviality.

The inter-subjective conviviality proposed excludes itself from any dilution of the human subject, either in a politically or ethically conceived communitarianism, on the one hand, and, on the other hand, in an individualism which might renounce any communitarian binding—both these are extreme situations, susceptible to leading to the impossibility of accessing law, though both call upon law as an instrument—, so the construction of a community here requires a reflection on difference and bases itself on an individual and a communitarian responsibility by the specific legal conditions of coexistence and conviviality.

All this means not a transcendentalization of a certain meaning of law, but a material assertion of meaning referents, anchored on the reciprocal recognition of human subjects as persons [16: 57–66, 17: 101–120, 114–120]. This way, law must be understood as a specifically critical reflection on social praxis, rationally in dialectical relationship with the problems within that praxis.

The internal critical reflection on law requires, in this approach, even assuming the community—as a fundamental dimension of legally relevant inter-subjective practice—as its privileged horizon, is presented through invoking an autonomous foundation for law as a “validity order” [38: 868–871, 46: 78–79, 47: 154–175], allowing the concrete realization of law to be seen not merely as a decision but indeed as a judicative decision [30: 9–34, 159 ff., 41: 97, 42]. It will require judicative decision to be understood not only as substantially-legally autonomous, but also as institutionally autonomous, dialectically shaping its auctoritas and its potestas in the adjudication—in the connection between the legitimacy of the mobilized arguments of principle and the arguments of policy, both in their selection and in their material justification.

A judicative-concrete decision is, thus, the relational result of the meanings normatively expressed by the legal system, in its dialectical constitutive pluri-dimensional character, as an expression of the tertiality law represents in face of—and in relation with—juridical relevant reality [15: 181–236, 202, 30: 197–205]. Therefore, judicial decision is to be taken as a specifically assumed judicium—a judicative decision, stated on the dialectics between normative principles and normative criteria, on the one side, and juridical problems, on the other… And this also means understanding this judicium as having the legal system as its horizon of normative reference, as well as of its substantial and institutional autonomy.