The proposed reflection intends to present the problem of judicial adjudication 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 syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right (...) answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled 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, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

Rationality and reasonableness can be illustrated as Janus-faced concepts, not only in a descriptive diagnosis but also in a normative construction of adjudication, and in the analysis of its practical and rhetorical effects. Considering such an illustration, the present reflection returns to the discussion on the relevance of rationality and reasonableness in legal interpretation, aiming at distinguishing and/or connecting principles and criteria, beyond formally logical and/or procedurally argumentative decision-making, and, thus, within a normatively practical adjudication. Such an approach will be (...) presented in two main steps. In a first step, the rationality/reasonableness dichotomy will be discussed within a constitutive connection between principles and criteria in adjudication, and understanding legal principles as normatively substantial foundations to legal criteria—the former as axiological references filtered into the juridical system and the latter as their concretizations, and whose practical adequacy is rhetorically assigned by the interpretive communities involved in/by adjudication, and normatively referred both to their practical accordance to the axiological normativity of the principles they shall presuppose and to their suitability as practical operators to the problematic relevance of the sub judice cases. In a second step, and consequently, encompassing the projection of legal interpretation, in semiotic and in practical-normative perspectives, in order to discuss their constituting practical relevance in adjudication, the rationality/reasonableness dichotomy will be experimented within formal-logical procedures and within practical-dialectical connections between juridical problem and juridical system—therefore stating a discussion on the foundations, the intentionality and the consequences of adjudication, amongst deduction and analogy. (shrink)

This introductory chapter integrates two different steps: a global consideration of the problems which the “signifier” limits is able to include and a detailed mapping of the reflective path which the following thirteen chapters effectively pursue.