Bannkreise giurisdizionali. Qualche appunto di metodo
DI PIER LUIGI PORTALURI
Abstract – The Bannkreise that tempt the judge have many faces. For example, the one that tempts him to establish a direct relationship with society, i.e., not mediated by the law: to disregard the normative datum, or even violate it, with the motive – or pretext? – of satisfying real or presumed needs of the community. This attitude is, however, very risky, as the totalitarianisms of the last century have shown us. Something very, too similar seems to me to be seen, albeit in the radical diversity of the table of values, in today’s post-modern hermeneutic meta-jurisprudences: according to which the law would be a text without its own objective meaning, and which instead the interpreter interrogates by placing himself within a ‘fusion of horizons’ in order to draw from it regulatory indications coherent with the vision of the concrete case that the individual body of application has. We are faced with a new kind of juridical absolutism, this time jurisprudential, which also aspires to obtain representative legitimacy. I believe it is preferable to turn the page: to end the time of ‘unlimited’ interpretation and instead adhere to a negative realism that focuses on the threshold beyond which dialogue with the text becomes pure and simple – albeit nobly justified – arbitrariness.
Keywords – law – violation – judge – interpretation – negative realism