Theory Of Adjudication Research Articles

The Legitimacy of Judicial Decision-Making: Towards Empirical Scrutiny of Theories of Adjudication

Jurisprudential accounts of judicial decision-making encompass a conceptual account of how judges decide cases and a normative account of how judges should decide cases. This paper explores the conceptual and normative dimensions of theories of adjudication and argues that these theories must be held to empirical scrutiny. The conceptual dimension of theories of adjudication clarifies what is necessarily true about judicial decision-making. The normative dimension of theories of adjudication explains how judges legitimately exercise judicial power through adjudication. In this paper, it is argued that empirical insights may shed light on the plausibility of the legitimacy claims of theories of adjudication, given the fact that these normative claims build on the descriptive dimension of these theories. Hart and Dworkin’s theories of adjudication are discussed to illustrate a narrow and wide conception of legitimacy in the context of judicial decision-making. The last part of this paper explores how empirical research based on interviews may be helpful to assess the conceptual and normative claims of Hart and Dworkin’s theories of adjudication.

FORMALISM

In this article, Professor Frederick Schauer argues that the formalism as a theory of adjudication restrict to the relevant decision-makers the scale of practical deliberation in terms of selecting moral and political considerations by placing their deliberation within the closed confines of the literal meaning of the words and the structure of the text itself. This, in turn, reduces formalism to the pure form of “rulism” where the language used in the text itself, completely devoid of the historical and social context or the intention of the drafters, substitutes the complete array of the external factors which could be relied upon in the process of decision-making. Professor Schauer attempts to reconstruct the concept of formalism by supplying its moral and political justification within the configuration of the legal system concerned. In doing so, he sketches the preliminaries of, what he terms as, the theory of presumptive formalism attempting to retain the advantages of the formalism itself and simultaneously accommodating the various criticisms levelled against it. However, it is doubtful whether Professor Schauer intends to develop the comprehensive and fully-fledged theory of decision making based on the formalistic underpinnings. Rather, what he aims is to reestablish the reputation of formalism as the respectable or at least not neglectable account of legal reasoning and adjudication. It is, in view of Professor Schauer, the substantial content of the concept that truly matters and not the label with which the content is conveyed. Therefore, the tendency of its unabashed condemnation – whenever one hears the label – should be resisted and the scholarly attention should instead be redirected on the best understanding the concept itself

Making Law Possible

Making Law Possible

Ronald Dworkin’s Theory of Adjudication as Applied to Obergefell v. Hodges

Ronald Dworkin’s Theory of Adjudication as Applied to Obergefell v. Hodges

Menguji Ketangguhan Realisme: Kritik terhadap Putusan Mahkamah Konstitusi Nomor 14/PUU-XI/2013 Pasca Pemilu Serentak 2019

This article examines Constitutional Court Decision Number 14/PUU-XI/2013 following the simultaneous elections of 2019. The object is the correctness of the utilisation of realism as a theory of adjudication by the Court in deciding the constitutionality of Law Number 42 of 2008. It can be concluded that, the Court’s decision is false, i.e. it fails to strengthen presidential in Indonesia, as expected by the Court, according to coattail effect theory. Hence, responding to this failure, this article suggests a caveat that the utilisation of realism should anticipate its fallibility. Therefore, responding to the issue to be more general, this article also suggests a proposal for a constitutional amendment to restructure the judicial review mechanism in accordance with the Canadian model known as, conceptually, judicial review with legislative finality. The recommendation aims to anticipate judicial error in constitutional interpretation as shown by the Constitutional Court Decision Number 14/PUU-XI/2013.

Revisiting Raz: A Reply

De vuelta a Raz: una réplica En Judging Positivism, sostengo que Joseph Raz cambió su posición en el tiempo y que esos cambios produjeron inconsistencias e incoherencias en su posición madura. La premisa clave que pone en marcha el argumento es la siguiente: la concepción de sistemas jurídicos en Practical Reason and Norms (PRN) está basada en, y depende de, la tesis de que jueces tienen un deber de aplicar el derecho. Tratase de una concepción positivista del derecho que deriva de una visión positivista del trabajo del juez. Problemas surgen para Raz cuando él introduce elementos morales en su concepción positivista de derecho. En particular, analizo las dificultades que Raz encuentra cuando introduce una teoría moral de la aplicación del derecho en Ethics in the Public Domain (EPD), y una teoría moralmente cargada de la autoridad en Morality of Freedom (MF). André Coelho y Jorge Fabra-Zamora cuestionan mi crítica a los argumentos de Raz sobre la aplicación del derecho, mientras Thomas Bustamante plantea sus comentarios en mi critica de la autoridad en Raz. Al contestar a mis críticos, revisito mi interpretación de PRN, al paso que exploro las premisas fundacionales en discusión en estos debates. Rechazo la posibilidad de que todas presuposiciones fundacionales son igualmente valiosas: el análisis conceptual no normativo no es, en mi opinión, una metodología viable si se quiere contestar las cuestiones planteadas por Raz y Hart. Asimismo, investigo las dificultades que la teoría de la autoridad de Raz encuentra.

Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

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.

The Centre–Periphery Antagonism in Adjudication: A Case Study on the Spatial Dimension of the Political

One of the key elements of the critical theory of adjudication is the identification of an objective antagonism that is at stake behind a given court case. The identification of the antagonism allows to develop an axis, along which interpretive possibilities can be spread and arranged from those most favourable to social group A (e.g. workers) to that most favourable to social group B (e.g. businesses). The paper discusses the famous Laval–Viking case-law which was concerned with the fundamental rights of workers (right to strike and undertake collective action) and their relation to the economic freedoms of businesses, seeking to escape the high standards of worker protection in their own country either by changing the flag of a ship to a flag of convenience (Viking) or by importing cheap labour force from abroad, without guaranteeing the workers equal rights (Laval). Whereas the vast majority of scholars have interpreted the Viking–Laval jurisprudence as relating to the fundamental socio-economic antagonism opposing workers and businesses, the Slovenian scholar Damjan Kukovec has proposed an alternative reading. According to him, the real antagonism is ultimately between workers from the periphery (Central Europe, in casu Baltic countries) and workers from the centre (Western Europe, in casu Scandinavian countries). By introducing the spatial dimension to the political, Kukovec entirely changes the formulation of the underlying antagonism. The paper engages critically with Kukovec’s analysis and argues that the objective interest of Central European workers lies not in selling their labour at dumping prices, but gaining the same guarantees of social protection as existing in the West.

A Formalist Theory of Contract Law Adjudication

Formalism has a bad name. It is often seen as a naive and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes. The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article assumes as its starting point that the law of contracts is an instrumentally justified legal institution (i.e., an institution justified because of its valuable social consequences). Starting from this assumption, this Article asks what approach to the adjudication of contractual disputes facilitates the achievement of contract law’s instrumental goals. Against the common assumption, the answer is that a formalist approach—the specific contours of which are set out below—would be instrumentally best. This is because formalism, with its commitment to an ex-post, rule-bound, doctrinalist, and modest approach to legal adjudication, has important instrumental benefits. Formalism contributes to simple, generalizable, and cost-effective decision-making; it is consistent with the institutional competence of courts; reduces the risks and overall costs of legal mistakes; and increases predictability, protecting contractual parties’ legitimate expectations. Moreover, formalism is an adequate means to deal with value pluralism and is consistent with the main values served by the law of contracts, such as autonomy and efficiency. Thus, encouraging judges to make socially optimal decisions in contractual disputes might not be the optimal strategy. The overall socially optimal outcome might, instead, be achieved through a decision procedure that directs judges to decide by applying pre-existing doctrine and expanding it incrementally. If that is the case, then, despite their disagreement about contract law’s foundations, instrumentalist and formalist theorists might agree about the narrower question of how judges should decide contractual disputes.

Confronting Normative Uncertainty: Deciding Cases When You Don’t Know How to Decide

The intellectually honest and humble judge faces a very serious problem about which little has been said. It is this: how to decide what she ought to do when, despite knowing all the relevant facts, laws, and theories of adjudication about how she ought to decide, she remains uncertain. Drawing from emerging debates in moral theory, I call this problem the problem of “normative uncertainty.” In this Article, I explain the problem, distinguish it from related debates in the legal literature, and show that the obvious solution—engage in some legal reasoning to figure it out—is a nonstarter. Judges ought not simply muddle through, following whichever theory of adjudication they find most plausible. Sometimes, like in Brown v. Board of Education or Google v. Oracle, they ought not follow their preferred theory but do what another theory suggests instead. Developing a full solution will be difficult. To show why, I sketch a solution and apply it to Brown I. I do not defend it. Instead, I use it to illustrate why developing a solution to normative uncertainty is considerably more difficult than developing solutions to other kinds of uncertainty. I then apply it to Google to show how, even without a solution, recognizing the problem changes how we evaluate judging. Specifically, we can consistently maintain both that a court erred legally, and that a court acted rationally given its uncertainty. Importantly, these two critiques are against different benchmarks—jurisprudence and practical rationality—and so going forward, we need to be clear which critique we are making.

Law in the Snares of the Political. Addressing Rafał Mańko’s Critical Philosophy of Adjudication

The paper aims at reconstruction and critical discussion with the main tenets of political theory of adjudication, as presented by Rafal Manko in his book, 'W strone krytycznej filozofii orzekania. Politycznośc, etyka, legitymizacja' ['Towards a Critical Philosophy of Adjudication. The Political, Ethics, Legitimacy']. In the paper, I demonstrate: that the interpretation of the concept crucial for the entire theory – which is the concept of political – has been chosen by Manko in an ideological and a priori manner; that the choice above effectively prevents the realisation of the main objective of the book, which is to legitimise adjudication; that the adoption of the ethics of adjudication advocated in the book is – in the light of the basic assumptions of that very publication – both improbable and hardly acceptable. Finally, I claim that Manko’s theory, due to its totality, can distinguish neither between legitimate law and violence nor between justified and unjustified adjudication. As a result, it loses its critical force. All these problems are not peculiar to Manko’s theory, but they are general weaknesses of various versions of critical jurisprudence.

Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects

AbstractIn her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

Hercules as a Feminist Judge? Revisiting Rackley’s Little Mermaid Post Feminist Judgments Projects

In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s super-judge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This article assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolution in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship. The article is in four parts. Part I places feminist approaches to adjudication in broader theoretical context. Part II considers Dworkin’s theory of adjudication and Rackley’s critique. Part III sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part IV critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

Kelsen’s Contribution to Contemporary Philosophy of International Law

This paper revisits the Hart-Kelsen debate in philosophy of law through the lens of their views on the legal status of international law. Hart’s unsatisfactory account of that status dominates recent philosophical debate about international law largely because scholars accept Hart’s claim to have refuted Kelsen. But, as I argue, Hart distorted Kelsen in order to ‘refute’ him. With those distortions corrected, we can see that Hart’s own legal theory is not only parochial but incoherent on its own terms. More important, we can appreciate the merits of Kelsen’s theory in two major respects. First, Kelsen, unlike Hart, does not start by constructing a theory of the law of a national legal order, and, only then, ask whether international law is law in its light. Rather, he shows that an understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. Second, we can see that the fundamental divide in philosophy of law is neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication. Rather, the divide is between Kelsenian dynamic and Hartian static models of law, where these labels signify whether the model includes the dynamic process of legal change within the scope of legal theory or consigns it to some extra-legal space.

Jeremy Waldron’s ‘Dworkinian’ Theory of Legal Reasoning: The Neglected Link

This article argues that Ibero-American legal theory has misunderstood Jeremy Waldron’s theory of legal reasoning, displaying it as a formalist theory of adjudication, and Waldron’s view as exclusive-positivist. This originates in a distorted reading of his theory of law, which is explained, in turn, by the image of Waldron as Dworkin’s opponent, constructed (mostly) by constitutional law scholars. This article shows that Waldron actually holds a “dworkinian” theory of legal reasoning, which works as a link between his theory of democracy and his more recent theory of human dignity. Both features have been virtually ignored in Spanish-speaking academic circles.

Hartian Positivism and Dworkinian Interpretivism: Two Approaches to the Relationship Between Judicial Review and Democracy

Over the past several decades, there has been a vigorous debate amongst legal and political theorists regarding the apparent tension between democracy and American-model judicial review. Several theorists have argued that allowing an unelected judiciary to reshape constitutional norms, thereby limiting the measures which can be taken by majoritarian processes, is democratically problematic. Other theorists have attempted to define democracy in ways which render judicial review less morally troublesome. Common to both sides seems to be the assumption that the correct position depends primarily on what we mean by ‘democracy’ or ‘majority rule.’ This represents a considerable obstacle to debate given the intense contestation of those concepts in both academic and lay discourse. This paper will attempt to address the relationship between democracy and judicial review along a different path. I here begin with what I believe to be a relatively noncontroversial premise: that judicial review of constitutional law can be understood as a particularly important special case of the more common process of adjudication. I thus hope to explore the topic of judicial review with a focus on the implications our chosen theory of adjudication has on our understanding of both constitutional norms and democracy. Particularly, I hope to contrast the moral and practical difficulties that judicial review poses for the perspectives of both legal positivism as exemplified by the work of H.L.A. Hart and the interpretive theory of law espoused by Ronald Dworkin. As I understand the difference between the two theories, they conceptualize the process of adjudication (and thus judicial review) entirely differently. For the Hartian, adjudication of novel cases involves the ex post construction of legal norms to fit new situations as they arise. For the Dworkinian, adjudication is ideally an attempt to discover the principles of political morality already internal to the legal order from which the case arises. I will here argue that this conceptual disagreement leads to profound differences in how we should understand the moral complexities raised by the issue of judicial review. Finally, I will argue that Dworkin’s theory of adjudication provides a much better framework for understanding the moral importance of the debate over judicial review and its relation to our understanding of democracy. To better ground this discussion, I will frequently illustrate the differences between the two theories with a fairly recent decision of the United States Supreme Court, United States v. Jones. In Jones, the Supreme Court had to decide how the Fourth Amendment to the United States Constitution applies to the warrantless installation and use of a GPS-tracking device to gather information about a criminal suspect’s movements. Because the issue in the case concerns the constitutionality of the government’s use of technology invented over two hundred years after the enactment of the relevant constitutional provision, I believe it represents an ideal example to ground our discussion of whether and how courts craft new constitutional norms through the process of judicial review. This paper has three parts. In Part One, I will briefly summarize the relevant features of these two theories of adjudication as they relate to judicial review. In Part Two, I will summarize the facts of Jones and attempt to confront the case from each of these perspectives while occasionally contrasting both with the frameworks adopted by Justices Scalia and Alito. In Part Three, I will use the arguments presented in the Parts One and Two to contrast positivism and interpretivism as theories of judicial review. I will argue that, because of Dworkin’s acceptance of principles of political morality already inherent in the law, his theory does a better job of: (a) comporting with the actual behavior of judges engaged in judicial review, (b) explaining how judicial review presents a legitimate moral difficulty for democratic societies, and (c) providing a theoretical framework for how we should understand democratic or majoritarian control of the judiciary.

The Case for Formalism in Contract Law Adjudication

Formalism has a bad name. It is often seen as a naive and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture, and has been particularly influential in contract law. This Article goes against this prevailing view, and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes. The argument of the Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article assumes as its starting point that the law of contracts is an instrumentally justified legal institution, i.e. an institution justified because of its valuable social consequences. Starting from this assumption, the Article asks what approach to the adjudication of contractual disputes facilitates the achievement of contract law’s instrumental goals. The answer, against what is commonly assumed, is that a formalist approach—the specific contours of which are set out by the Article—would be instrumentally best. The reason for this is that formalism, with its commitment to an ex post, rule-bound, doctrinalist, and modest approach to legal adjudication, has important instrumental benefits. Formalism contributes to simple, generalizable, and cost-effective decision-making; it is consistent with the institutional competence of courts; reduces the risks and overall costs of legal mistakes; and increases predictability, protecting contractual parties’ legitimate expectations. Moreover, formalism is an adequate means to deal with value pluralism, and is consistent with the main values served by the law of contracts, such as autonomy and efficiency. Thus, encouraging judges to make socially optimal decisions in contractual disputes might not be the optimal strategy. The overall socially optimal outcome might, instead, be achieved through a decision procedure that deliberately recommends judges not to pursue the aim of reaching socially optimal outcomes in each and every case, but rather to decide by applying pre-existing doctrine and expanding it incrementally. If that is the case, then, despite their disagreement about contract law’s foundations, instrumentalist and formalist theorists might agree about the narrower question of how judges should decide contractual disputes.

Choosing for Europe: judicial incentives and legal integration in the European Union

We investigate the factors influencing the choice of domestic judges to pass on cases to the Court of Justice of the European Union. While EU judicial scholars have typically relied on integration theory or ad hoc theories of adjudication to explain referral activity, our theoretical framework draws on general judicial decision making theory and focuses on the incentives and constraints national judges face when deciding whether to submit a references to the Court of Justice. Consistent with our rationalist account of judging, we find empirical evidence that the rate at which national courts refer cases is influenced by familiarity with EU law, power-seeking motives and political fragmentation.

Do Judicial Decision-Making and Quantum Mechanics Have Anything in Common? A Contribution to Realist Theories of Adjudication at the CJEU

This paper offers some arguments derived from the case law of the Court of Justice of the EU (CJEU) that contribute to the realist’s description of adjudication process. It is a small part of wider research aimed ultimately at answering whether and how artificial intelligence (AI) can be used in adjudication at the CJEU. The first step in such research is to answer what really happens in the process of adjudication, or, more simply, to understand how judges decide. In order to open discussion about legal formalism and legal realism seen as descriptive theories of adjudication, I am making a parallel with science, more precisely with the world of quantum mechanics. The ways legal scholars describe judicial decision-making are, therefore, compared with the ways physicists explain the results of experiments on the behaviour of small particles.

Teoría “dworkiniana” del razonamiento jurídico de Jeremy Waldron: el eslabón ignorado

En este trabajo se sostiene que la teoría del derecho iberoamericana ha malinterpretado la teoría del razonamiento jurídico de Jeremy Waldron, presentándola como una teoría formalista de la adjudicación, y a Waldron como un positivista excluyente. Esto se debe a una lectura sesgada de su teoría del derecho, que se explica, a su vez, por la imagen que el constitucionalismo ha construido en torno a Waldron, como un opositor de Dworkin. Este trabajo muestra que Waldron suscribe a una teoría “dworkiniana” del razonamiento jurídico, la que opera como eslabón entre su teoría de la democracia y su teoría más reciente de la dignidad humana. Ambas cuestiones han sido virtualmente ignoradas por el medio académico hispanoparlante.