Imago veritas falsa: for a (post-)Schmittian decisionist theory of law, legal reasoning, and judging
Version 2 2024-06-17, 13:29Version 2 2024-06-17, 13:29
Version 1 2015-03-26, 11:26Version 1 2015-03-26, 11:26
journal contribution
posted on 2024-06-17, 13:29authored byL Siliquini-Cinelli
For decades, while approaching the ‘normativism/pragmatism’ divide and discussing the legitimacy of (and opportunity for) the judge to act as a ‘social engineer’, socio-legal scholars have tried to ascertain whether the jurist should also consider the impact of his/her activity on society at large, and if so, why and to what extent. The present contribution understands instead the law in terms of a structurally incomplete image (imago veritas falsa) which always needs the decisive intervention of the legal interpreter to exercise its performative instances. In particular, by adopting an unconventional theoretico-philosophical approach that transcends the classic boundaries of foundationalist metaphysics as expressed by the dichotomy of Western logic, this paper argues for the necessity of a tertium comparationis capable of explaining that the real essence of law, legal reasoning, and judging is neither that of normativism, nor of pragmatism, but rather of (post-)Schmittian decisionism.
History
Journal
Australian journal of legal philosophy
Volume
39
Pagination
118-141
Location
St Lucia, QLD
ISSN
1440-4982
Language
English
Publication classification
C1 Refereed article in a scholarly journal, C Journal article