How do judges decide? Differences and proximities between Jügen Habermas' and Niklas Luhmann's theories of decision

Abstract

The Democratic Rule of Law State presents new demands on how to justify judicial decisions. Judicial decisions have become essential parts to the implementation of constitutional rights. Two responses to these new requirements can be found under Jürgen Habermas’ and Niklas Luhmann’s theories. According to Habermas, we understand that Law currently has been conceived as an open system of principles, and any positivist or literalist proposals for Law application are unsustainable. Based on Luhmann, one can understand that judicial decision has always been characterized by a creative act of paradox deployment which, due to this peculiarity, requires more sophisticated levels of justification.