Caso e certezza del diritto nell'attività giudiziale

The paper deals with the probable existence of what may be called chance, accident, contingency or even arbitrariness especially in determining the meaning of facts and norms which are relevant for the decision of a judicial case. Under a realistic and hermeneutical point of view, Oliver W. Holmes, Max Weber, and Josef Esser have shown that the determination of facts and norms are matter of selection. But as decisions selections are subjective by nature. The theory of legal argumentation, by focusing the hypothetical conditions of legal certainty, neglects the true role of chance in adjudication.