L'insostenibile pluralità della giurisprudenza. Il giovane Schmitt e la certezza del diritto

This essay presents a comprehensive reading of Gesetz und Urteil, in which the young Schmitt deals with the topic of judicial decision making, criticizing both formalism and Freirechtsschule. Nonetheless, if at a first sight Schmitt’s thesis might appear over this dispute – by the highlighting of the case method and the motivation – it already emerges a complete distrust in the rationality of the decision, whose only strength is its capacity of standing out and setting the order. We thus do understand the shifting in Schmitt’s thinking from the philosophy of the judgement to the philosophy of the power. The dialogical dimension of the judicial decision, coming from a practical reasoning-oriented, cooperative and collective endeavor, could not be appreciated by Schmitt, who was looking for an order-setting decision, a stable order mirroring the cohesive community.