Abstract

This contribution starts from the fact that up till now criminal legal theory has not yet dealed in a satisfactory way with the question how to reconciliate the still existing need in legal practice to abstract theories, principles and concepts, on the one hand, and the irreducible intuitive and context related dimension of the adjudicative process, on the other hand. At the outset of the essay, an effort is made to develop an anti-theoretical approach of adjudication, based upon the strongest particularistic arguments borrowed from Wittgensteinian thinkers like D. Wiggins, J. McDowell, B. Williams and C. Taylor. The essay goes on to submit these arguments to a critical analysis, not in order to rescue legal practice from the anti-theorist threat, but to explore the possibilities as well as the limits of conceptualizing and normative theorizing in the adjudicative process. One of the basic conditions which has to be met if a normative theory is to have any grip on legal practice, is the following. The process of articulating the evaluative imput of the penal judge on an abstract and theoretical level, only makes sense if its resulting concepts still fit our ordinary language, if these concepts can still be understood as a sort of abbreviation of the judges’ as well as the citizens’ intuitive practices