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Imago veritas falsa: for a (post-)Schmittian decisionist theory of law, legal reasoning, and judging

Version 2 2024-06-17, 13:29
Version 1 2015-03-26, 11:26
journal contribution
posted on 2024-06-17, 13:29 authored by L 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

Copyright notice

2014, Australian Society of Legal Philosophy

Publisher

Australian Society of Legal Philosophy