Abstract

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

Highlights

  • The relationship between judicial decision-making, ideology and the political is certainly not a new topic for critical legal theory

  • Given that ‘agonistic democracy privileges plurality, difference and contestation’ (Breen 2009, p. 133), in my theoretical project the judge, as decision-maker, will be portrayed as someone arbitrating between conflicting interests—in every single case that is adjudicated—on the assumption that political conflicts do not come to an end when legislation is enacted, but they continue in the courtroom (Bator 2020, p. 28)

  • For a given judicial decision to directly affect a collective antagonism it need not be framed in strictly legal terms as collective litigation; it is sufficient that its outcome, either legally or factually has an impact upon such collective interests

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Summary

Introduction

The relationship between judicial decision-making, ideology and the political is certainly not a new topic for critical legal theory. The degree to which ideology plays a crucial role in judicial decision-making varies from case to case, one can safely say that it is highest in those instances when judges face interpretive dilemmas, especially when requested to apply balancing of rights and/or principles, proportionality tests or to interpret open norms (general clauses) (Kennedy 2015).

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