On the Legal Enforcement of Values. The Importance of the Institutional Context

After having shown that the current debate on the role of moral reasoning in adjudication is related to a set of institutional processes (the global spread of constitutionalism, the diffusion of written constitutions and declarations of human rights, the growing importance of rights claims in adjudication, and the processes of globalization and Europeanization), I distinguish two positions in that debate: ‘normative legal positivism’ and ‘neoconstitutionalism’. I argue that the choice between the two rival approaches must necessarily consider a variety of contingent legal, political, and social factors: we cannot accept or reject a normative theory of legal interpretation without first having analysed and assessed the institutional context in which the interpretation is performed. A purely theoretical-normative approach would therefore be insufficient. Finally, I try to clarify some methodological and substantive consequences which can be drawn from the nexus that binds together the choice of interpretive method with the greater or lesser trust we have in the interpreter.