INTRODUCTION: LEGAL REALITY V. ADJUDICATION(?)

Facing legal reality as a multitude of facts and the legal system as a set of norms in some approaches to judicial decision, as representations or images of the adequate projection of law in reality, traditionally allowed for understanding logical deduction as the ideal rationalisation of adjudication, as a deductive modus operandi entailing the generality and abstraction of norms and the particularity and concreteness of facts. Such understandings of the realisation of law do not only appear in formalistic-positivistic legal thinking inherited from the nineteenth century, but rather still arise in contemporary practical-argumentative and practical-critical perspectives on legal method(s), considering law as a normative order directed to social practice requiring syllogistic reasoning, and presupposing the lack of autonomous normatively constitutive relevance of facts in adjudication.

A critical overcoming of such an understanding of judicial decision, entailing a dialectical connection between the juridical problem and the juridical system, will state adjudication as a judicative realisation of law, and will, therefore, lead to a specific contemplation of the role of norms, and, eventually, of other criteria, such as judicial precedents and dogmatic models. Accordingly, legal thinking will be presented as a kind of reasoning that is essentially material and axiological, though also teleological and – in its expression, though not in its essence – argumentative.

THE ROLE OF RULES AND NORMS AND THE RULES–NORMS DICHOTOMY

Rules and norms play specific and distinct roles, expressing different meanings in law. Hence, questioning the role of rules and norms in adjudication presupposes a reflection on the rules–norms dichotomy, mainly because rules may be strictly understood as regulatory instructions to action, based on an agreement, as rules of a game, whether finalistically or formalistically assumed – meaning materially or formally assumed as rules that play a role understood as a practical function in a consequentially, or only formalistically, regulating practice; and norms, as rational enunciations, may be strictly distinguished as general and abstract determinative enunciations to action, comprehending a hypothesis and a consequence.