2 THE ITALIAN LAW JOURNAL NO. 1 (2016) Rationality and Counterfactual Legal Analysis by Antonio Estella de Noriega The aim of this article is to argue that counterfactual legal analysis should be used as a primary method in judicial interpretation of legislation. The article examines this issue assuming a rationality setting in which law is understood as a credibility device. Judges should show deference to the legislator when counterfactuals have been foreseen by the latter; in contrast, they might substitute their own judgment for the legislator’s choices when the latter has not devised a counterfactual situation, and the norm is not an equilibrium from a ‘law as credibility’ perspective.
