Journal articles: 'Law and adjudication theory'

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Pócza, Kálmán. "Democratic theory and constitutional adjudication." Acta Juridica Hungarica 56, no. 2-3 (September 2015): 199–212. http://dx.doi.org/10.1556/026.2015.56.2-3.9.

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Leiter, Brian. "Heidegger and the Theory of Adjudication." Yale Law Journal 106, no. 2 (November 1996): 253. http://dx.doi.org/10.2307/797211.

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Hovenkamp, Herbert. "Fact, Value and Theory in Antitrust Adjudication." Duke Law Journal 1987, no. 5 (November 1987): 897. http://dx.doi.org/10.2307/1372693.

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Dan-Cohen, Meir. "Bureaucratic Organizations and the Theory of Adjudication." Columbia Law Review 85, no. 1 (January 1985): 1. http://dx.doi.org/10.2307/1122403.

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Bogart, John. "Adjudication, Validity, and Theories of Law." Canadian Journal of Law & Jurisprudence 2, no. 2 (July 1989): 163–70. http://dx.doi.org/10.1017/s0841820900002824.

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Although Positivism and Natural Law theories seem to be mutually exclusive theories regarding the law, one might be able to salvage the attractive features of both theories by confirming each theory to a different area of judicial life. The most promising line of demarcation is to confine Positivism to theories of validity, and to confine Natural Law to theories of adjudication. This strategy has been very ably outlined in a paper by David Brink, which I shall use as the springboard for this essay.

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Madry, Alan R., and Joel F. Richeimer. "The Possibility of Normative Jurisprudence:A Response to Brian Leiter." Legal Theory 4, no. 2 (June 1998): 207–39. http://dx.doi.org/10.1017/s1352325200000987.

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In a recent article Brian Leiter concluded that a useful normative theory of adjudication is impossible. A normative theory of adjudication would be a theory that, among other things, identified the moral and political norms that judges ought to follow in determining the law for any particular legal dispute. Letter's elegant and subtle argument, stripped to its bones, runs as follows: Philosophers of law regard a correct normative theory of adjudication as being dependent upon an antecedent descriptive theory. The dependence here, as Leiter describes it, is of a very strong sort and unique among philosophical theories: Any normative theory, to be acceptable, cannot depart from the actual practice of judges and lawyers. Consequently, the content of the normative side of the theory is simply to “continue to do what you've been doing,” supplemented, perhaps, by Holme's injunction to do it more selfconsciously and explicitly.

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Adams, Thomas. "Is there a Naturalistic Alternative? Realism, Replacement, and the Theory of Adjudication." Canadian Journal of Law & Jurisprudence 27, no. 2 (July 2014): 311–27. http://dx.doi.org/10.1017/s0841820900006378.

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This essay considers Brian Leiter’s arguments for ‘replacement naturalism’ in the domain of adjudication, his thesis being that we should reject as plausible the ‘normative theory of adjudication’ and replace it witha posterioritheory which best explains the causes of judicial decisions. My central claim is that his ‘naturalizing’ argument is incomplete in the following way: it is against a bad kind of philosophical theory and leaves scope for a better, non-naturalistic, account. Both Leiter’s original arguments for the position and his more recent suggestions in response to critics are considered.

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Gilbert, Michael D. "Does Law Matter? Theory and Evidence from Single-Subject Adjudication." Journal of Legal Studies 40, no. 2 (June 2011): 333–65. http://dx.doi.org/10.1086/660839.

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Canale, Damiano. "Comparative Reasoning in Legal Adjudication." Canadian Journal of Law & Jurisprudence 28, no. 1 (January 2015): 5–27. http://dx.doi.org/10.1017/cjlj.2015.15.

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This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

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McCormick, John P. "Three Ways of Thinking “Critically” about the Law." American Political Science Review 93, no. 2 (June 1999): 413–28. http://dx.doi.org/10.2307/2585404.

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Radical criticisms of liberalism's method of legal adjudication focus on its excessive formalism, its tendency to foster indeterminacy, and its naive maintenance of the separation of political from legal concerns. I examine these arguments as they appear in the work of Carl Schmitt, on the Right, and the Critical Legal Studies (CLS) movement, on the Left. Jürgen Habermas has recently attempted to refute the positions of these most scalding twentieth-century critics of liberal adjudication. I argue that by so extensively engaging these theorists, and in fact liberalism itself, on their own grounds, Habermas has abandoned some of the distinctive strengths of what he previously practiced as a critical social theory in his new reflexive or discourse theory of law.

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Altamimi, Abdulmalik M. "An Interactional World Trade Law." International Community Law Review 18, no. 3-4 (October 6, 2016): 317–52. http://dx.doi.org/10.1163/18719732-12341329.

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This article undertakes an innovative analysis of the theoretical and practical bases of world trade law by employing the interactional international law theory developed by Jutta Brunnée and Stephen Toope, and the jurisprudence of Lon L. Fuller. There are two main reasons for choosing an interactional approach. Firstly, through the constructivist notion of shared understandings, it offers a suitable framework for identifying the social foundations of world trade in terms of economic and legal inputs into the system. Secondly, Fuller’s contributions are acutely relevant to world trade law because of the economics foundation of his morality of law thesis, and his insightful reflections on fidelity to law, legality, and adjudication. Fuller’s jurisprudence pays close attention to the limits of adjudicating institutional rules that apply to the allocation of economic resources. This makes it useful for discussing the procedural challenges facing the World Trade Organization compliance regime.

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Brink, David O. "Legal Positivism and Natural Law Reconsidered, Again." Canadian Journal of Law & Jurisprudence 2, no. 2 (July 1989): 171–74. http://dx.doi.org/10.1017/s0841820900002836.

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In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.

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Chapman, Bruce. "The Rational and the Reasonable: Social Choice Theory and Adjudication." University of Chicago Law Review 61, no. 1 (1994): 41. http://dx.doi.org/10.2307/1600090.

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Lowery, Patrick G., and Jessica C. Smith. "The Impact of Concentrated Affluence and Disadvantage on the Pre-Adjudication Detention Decision: A Status Characteristics Approach." Crime & Delinquency 66, no. 6-7 (February 22, 2020): 915–48. http://dx.doi.org/10.1177/0011128720907581.

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Studies of racial disparities in juvenile justice are primarily organized around four theoretical frameworks: focal concerns, racial threat, symbolic threat, and attribution theory. Moreover, juvenile justice research sometimes neglects to pay close attention to the front-end outcome of pre-adjudication detention. Therefore, the present study contends that status characteristics theory may broaden our understanding of how and why disparities in pre-adjudication detention arise. Moreover, the present study seeks to find how juvenile justice disparities in pre-adjudication detention emerge across races, among other social, legal, and community factors. Therefore, the present study focuses on the pre-adjudication detention decisions of judges and probation officers, utilizing quantitative data from the Virginia Department of Juvenile Justice and merged with American Community Survey data.

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Jacob, Marc. "Precedents: Lawmaking Through International Adjudication." German Law Journal 12, no. 5 (May 1, 2011): 1005–32. http://dx.doi.org/10.1017/s207183220001720x.

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This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

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Paunio, Elina. "Beyond Predictability – Reflections on Legal Certainty and the Discourse Theory of Law in the EU Legal Order." German Law Journal 10, no. 11 (November 1, 2009): 1469–93. http://dx.doi.org/10.1017/s2071832200018332.

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Legal certainty requires a balance between stability and flexibility. Following the hermeneutical footsteps of legal theorists such as Aulis Aarnio and Alexander Peczenik, a distinction can be made between formal and substantive legal certainty; between predictability and acceptability of legal decision-making. Formal legal certainty implies that laws and, in particular, adjudication must be predictable: laws must satisfy requirements of clarity, stability, and intelligibility so that those concerned can with relative accuracy calculate the legal consequences of their actions as well as the outcome of legal proceedings. Substantive legal certainty, then, is related to the rational acceptability of legal decision-making. In this sense, it is not sufficient that laws and adjudication are predictable: they must also be accepted by the legal community in question.

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Tan, Zhong Xing. "The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory?" Canadian Journal of Law & Jurisprudence 33, no. 1 (February 2020): 215–44. http://dx.doi.org/10.1017/cjlj.2019.36.

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This article explores the emerging use of the proportionality concept in the contract law of the Anglo-common law world, first to understand its internal logic, and secondly, to situate its invocation within private law theory. What are judges doing when they appeal to “proportionality”?, and what does this say about the ideology of adjudication? I draw insights from the use of proportionality in other domains, in particular public law, to uncover its internal rationality as a means-ends rationality review coupled with a process of balancing competing considerations, which I illustrate with reference to the illegality, penalty, and cost of cure doctrines. I argue that proportionality reflects a method of pragmatic justification, expressing an aspiration towards a structured and transparent mode of argumentation that is anti-formal and anti-ideological, focusing from the bottom-up on contextual considerations, and occupying a distinct space against existing theories in private law driven, for instance, by “top-down”? rights-based ideologies or critical and communitarian perspectives.

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Thomas, Robert. "Evaluating tribunal adjudication: administrative justice and asylum appeals." Legal Studies 25, no. 3 (September 2005): 462–98. http://dx.doi.org/10.1111/j.1748-121x.2005.tb00679.x.

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This article examines the development, operation and reform of the tribunal system responsible for determining appeals against the refusal of refugee status by the Home Office. Consideration of this particular appellate system is situated within a broader discussion of the criteria and values against which tribunal adjudication systems may be evaluated, By examining asylum appeals, light is shed on the theory and practice of administrative justice with regard to: the problematic nature of ensuring accuracy in tribunal decision-making; the tensions under which appeal procedures operate; the importance of onward appeal rights; and the role of tribunals in policy implementation. The article argues that recent reform of the asylum appeal process, including the introduction of a single tier of appeal, the Asylum and Immigration Tribunal, by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and restrictions on legal aid, has been motivated by political considerations and may increase the dificulties in operating an effective appeal process.

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Chan, Cora. "Winner of the SLS Annual Conference Best Paper Prize 2012." Legal Studies 33, no. 1 (March 2013): 1–21. http://dx.doi.org/10.1111/lest.12007.

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One of the most contested issues in UK public law is how to calibrate the appropriate intensity of proportionality review in human rights adjudication. Here, the challenge lies in formulating a theory of intensity of review that can both comply with the constitutional framework introduced by the Human Rights Act 1998 (‘HRA’) and accommodate courts' varying levels of competence in different areas of litigation. This paper attempts to sketch such a theory in two steps. First, it argues that to fulfil the constitutional expectations brought about by the HRA, a minimum rigour of proportionality review should be observed. This baseline consists of requiring the government to demonstrate to the courts by means of cogent and sufficient evidence that a rights-limiting measure satisfies the distinct stages of the proportionality test. Secondly, this paper highlights the ways in which compliance with this baseline can nonetheless accommodate the courts' varying levels of competence in different adjudicative contexts. In particular, courts can vary the intensity of review once the baseline level of review is reached and adjust the nature of the evidence required from the government.

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Endicott, Timothy A. O. "Vagueness and Legal Theory." Legal Theory 3, no. 1 (March 1997): 37–63. http://dx.doi.org/10.1017/s135232520000063x.

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The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.

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Bertolini, Elisa, and Graziella Romeo. "The Japanese Supreme Court as a Litmus Test for Generic Constitutionalism?" Global Journal of Comparative Law 9, no. 1 (April 17, 2020): 17–48. http://dx.doi.org/10.1163/2211906x-00901002.

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Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional aggregates.

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Valentini, Chiara. "Deliberative Democracy, Social Rights and the Modulation of Judicial Review." Revista Derecho del Estado, no. 49 (April 21, 2021): 179–97. http://dx.doi.org/10.18601/01229893.n49.10.

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Roberto Gargarella has infused into constitutional theory a deliberative approach to constitutional review and rights adjudication. By this, he has enriched our understanding of deliberative democracy as a political system in which the judiciary can play a central role, especially through the institution of constitutional review. Furthermore, he has provided us with crucial insights into the deliberative potential of this institution, shedding light on the different ways in which it may serve to secure the essential conditions of democratic deliberation. The article centers on this twofold, crucial contribution of Gargarella – to constitutional theory and to deliberative democratic theory – with a focus on the relationship between social rights and constitutional review. First, it presents the main controversial issues raised by this relationship, concerning both social rights justiciability and adjudication. Second it highlights the resources provided by Gargarella to understand and address both orders of issues, based on his account of deliberative democracy and constitutional review. Third, the article addresses the resulting view of the action of courts on social rights. In particular, it inquires into the idea of a “third way” for judicial action, requiring to modulate judicial review so as to mediate between judicial inertia and activism.

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Weaver, Max. "IS A GENERAL THEORY OF ADJUDICATION POSSIBLE? THE EXAMPLE OF THE PRINCIPLE/POLICY DISTINCTION." Modern Law Review 48, no. 6 (November 1985): 613–43. http://dx.doi.org/10.1111/j.1468-2230.1985.tb00866.x.

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Petkova, Bilyana. "The Notion of Consensus as a Route to Democratic Adjudication?" Cambridge Yearbook of European Legal Studies 14 (2012): 663–95. http://dx.doi.org/10.5235/152888712805580453.

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AbstractBuilding on the theory of democratic constitutionalism, I assess the political implications of the constitutional space formed by the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national constitutional courts in Europe. Democratic constitutionalism helps situate the role of constitutional courts in stimulating a degree of consensus, necessary for governance of heterogeneous communities such as the United States and the European Union. Questions of legitimacy and confidence in the judiciary come to the fore. I examine a mechanism used by the US Supreme Court, the CJEU and the ECtHR alike to foster democratic constitutionalism: in order to confront challenges to judicial legitimacy and remain responsive to the extra-judicial environment, these courts rely on majoritarian trends, or consensus, inspired by, but not limited to, the constitutional law of federal states and member countries.

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Leiter, Brian. "On the Value of Normative Theory: A Reply to Madry and Richeimer." Legal Theory 4, no. 2 (June 1998): 241–48. http://dx.doi.org/10.1017/s1352325200000999.

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I am grateful to Alan Madry and Joel Richeimer for their intelligent and stimulating critique of my article “Heidegger and the Theory of Adjudication.” It is the most interesting commentary I have seen on the paper, and I have learned much from it. It may facilitate discussion, and advance debate, to state with some clarity where exactly we agree and disagree. I leave to the footnotes discussion of certain minor points where Madry and Richeimer (hereafter “M&R”) are guilty of some critical overreaching.

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Atrey, Shreya. "Beyond discrimination: Mahlangu and the use of intersectionality as a general theory of constitutional interpretation." International Journal of Discrimination and the Law 21, no. 2 (May 12, 2021): 168–78. http://dx.doi.org/10.1177/13582291211015637.

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This case note explores the landmark decision of the South African Constitutional Court in Mahlangu and Another v. Minister of Labour and Others, which recognised intersectional discrimination under section 9(3) of the Constitution. It shows that the Court went beyond that in fact and recognised intersectionality not just as part of discrimination law, but also as part of general constitutional law, using it as a theory of constitutional interpretation in adjudication.

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Syrett, Keith. "Healthcare resource allocation in the English courts: a systems theory perspective." Northern Ireland Legal Quarterly 70, no. 1 (March 8, 2019): 111–29. http://dx.doi.org/10.53386/nilq.v70i1.235.

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Engagement with sociological perspectives can enrich an understanding of medical law and provide a basis for critique of certain of its key premises. Since both law and healthcare are frequently conceptualised and analysed as systems, the theoretical frameworks developed by Niklas Luhmann and Gunther Teubner would seem to offer particular promise in this regard. This article explores a particular area of medical law to which an understanding of the social (and political-economic) context of decision-making is of clear importance – adjudication upon the allocation of scarce resources – in order to identify what insights may be gained from an approach grounded in systems theory.

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Hickey, Tom. "Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects." Legal Studies 40, no. 3 (June 15, 2020): 494–506. http://dx.doi.org/10.1017/lst.2020.18.

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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.

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Dagilyte, Egle. "Conflicts of Rights in the European Union. A Theory of Supranational Adjudication - By Aida Torres Pérez." European Law Journal 17, no. 2 (February 22, 2011): 275–77. http://dx.doi.org/10.1111/j.1468-0386.2010.00548_1.x.

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Raz, Joseph. "Two Views of the Nature of the Theory of Law: A Partial Comparison." Legal Theory 4, no. 3 (September 1998): 249–82. http://dx.doi.org/10.1017/s1352325200001026.

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In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).

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Greer, Steven. "“BALANCING” AND THE EUROPEAN COURT OF HUMAN RIGHTS: A CONTRIBUTION TO THE HABERMAS-ALEXY DEBATE." Cambridge Law Journal 63, no. 2 (June 18, 2004): 412–34. http://dx.doi.org/10.1017/s0008197304006634.

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At the core of contemporary political, constitutional, and legal theory, lie the questions of how “constitutional”, “fundamental”, and “human” rights are, and should be, reconciled with each other and with considerations of the wider public interest. This article considers how the debate between Habermas and Alexy about the appropriateness of “balancing” as a way of addressing these problems might apply to the adjudication of the European Court of Human Rights, and concludes that, with some modification, Alexy's model is to be preferred.

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Lengoiboni, Monica, Christine Richter, Paul van Asperen, and Jaap Zevenbergen. "Initial Insights on Land Adjudication in a Fit-for-Purpose Land Administration." Land 10, no. 4 (April 14, 2021): 414. http://dx.doi.org/10.3390/land10040414.

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Land adjudication constitute a series of sequential steps that if followed carefully and correctly, can lead to a sufficient determination of the varied interests in land including whether, and where they overlap, complement, conflict or compete with each other. This is a preliminary study aiming to find out how the adjudication process as it is conducted in the context of a fit-for-purpose land administration (FFPLA). A framework of components for adjudication in the FFPLA context is first developed. Further, the steps involved in accomplishing the adjudication components are compiled, assessed, and discussed from the perspective of the theory of collaborative governance. The study poses questions for consideration by implementers of land tenure documentation activities on how to identify the interests in land as they exist in their undocumented form. An understanding of the interaction between different types of interests in land in undocumented form as defined from the perspective of the communities themselves rather than from the law, could help assess which tenures and their attributes—can overlap or complement each other, or inform how they equate to specific rights in the legal perspective with minimal conflicts.

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Soper, Philip. "In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All." Canadian Journal of Law & Jurisprudence 20, no. 1 (January 2007): 201–23. http://dx.doi.org/10.1017/s0841820900005750.

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The classical view of natural law, often traced to Aquinas’ statement that “unjust law is no law at all,” finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas’ claim into a claim of political theory (unjust law does not obligate) or construct new “natural law” accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies otherwise valid official directives from counting as “law”. Indeed, I suggest that modern positivism’s characterization of the normative claims that typify legal systems leads inevitably to the conclusion that “law,” as a conceptual matter, must be understood by insiders who employ the term to admit moral limits on what can count as “law.” I proceed as follows. First, I begin with some preliminary clarifying comments about methodology and the precise issue under discussion. Second, I describe four leading theories about the nature of law and consider how central ideas in each theory can be seen to generate opposing ideas that lead in turn to opposing models of law. Third, I state briefly the affirmative case for thinking that the classical natural law view is correct. Fourth, I identify basic mistakes in current approaches to the question about the nature of law that help explain why modern positivism has overlooked the manner in which it leads logically to the classical natural law view. Finally, I add some brief remarks about why itmatters: what practical consequences follow from acknowledging that there are moral limits on what can count as law.

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Hopkins, W. Wat. "The Supreme Court Defines the Marketplace of Ideas." Journalism & Mass Communication Quarterly 73, no. 1 (March 1996): 40–52. http://dx.doi.org/10.1177/107769909607300105.

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The marketplace of ideas metaphor is the model most called upon by the U.S. Supreme Court in the resolution of free-expression cases. Justices have used the theory in the adjudication of virtually every area of First Amendment law, despite increasing attacks on the theory. For the most part, however, the Court does not recognize a single, universal marketplace of ideas, but numerous mini-marketplaces, each with its own dynamics, parameters, regulatory scheme, and audience.

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Thirlway, Hugh. "A. von Bogdandy and I. Venzke: In Whose Name? A Public Law Theory of International Adjudication." Netherlands International Law Review 62, no. 3 (November 18, 2015): 475–83. http://dx.doi.org/10.1007/s40802-015-0045-7.

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Schauer, Frederick. "Positivism Before Hart." Canadian Journal of Law & Jurisprudence 24, no. 2 (July 2011): 455–71. http://dx.doi.org/10.1017/s0841820900005270.

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Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we conceive of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are thus committing neither historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.

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Bekrycht, Tomasz. "Jerzy Wróblewski’s Concept of Legal Interpretation in its Axiological and Epistemological Context." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 217–28. http://dx.doi.org/10.1163/15730352-04502002.

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The work of Jerzy Wróblewski has had a huge impact not only on the theory and philosophy of law, both in Poland and internationally, but also on the whole of jurisprudence, especially the fields of doctrinal legal research and the practical application of the law (in particular on adjudication). The aim of this study is to present one of Wróblewski’s most influential concepts, namely the theoretical model of judicial interpretation, from the point of view of axiology and epistemology in the field of jurisprudence.

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Mańko, Rafał. "Dimensions of the Political in Adjudication: A Case Study." Acta Universitatis Lodziensis. Folia Iuridica 92 (September 10, 2020): 5–16. http://dx.doi.org/10.18778/0208-6069.92.01.

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Contrary to traditional accounts, which treat adjudication as the application of legal norms to the facts of a case, without any creative activity, the present paper assumes, following crtitical legal theory, that adjudication as a social practice belongs to the sphere of the political and involves judicial decision-making. The concept of the political is understood, following Chantal Mouffe, as the dimension of unalienable and inherent antagonism underlying any society. Any judicial decision, and especially one taken in a case where the court enjoyed a broad scope of discretion, influences a given social antagonism. However, as a prerequisite of a critical analysis of case-law it is necessary to identify the social antagonisms in question. To this end, the paper first analyses the very concept of an antagonism, highlighting its collective character, and then makes a tentative application of the concept to the European Court of Justice, attempting to identify the main types of social antagonisms which are subject to the Court’s jurisdiction.

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Kasatkin, Sergey N. ""THEORY OF LAW" VS. "THEORY OF ADJUDICATION": BASES OF METHODOLOGICAL QUALIFICATION OF LEGAL DOCTRINES IN POLEMICS BETWEEN R. DWORKIN AND POSITIVISTS." Proceedings of the Institute of State and Law of the RAS 16, no. 4 (August 25, 2021): 21–40. http://dx.doi.org/10.35427/2073-4522-2021-16-4-kasatkin.

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Gochnauer, Myron. "Myth, Misogyny and Male Neurosi." Canadian Journal of Law & Jurisprudence 6, no. 1 (January 1993): 153–67. http://dx.doi.org/10.1017/s0841820900001831.

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In the past half century most legal philosophy has been limited to a fairly narrow range of traditional topics such as adjudication, legal reasoning, interpretation, legal persons, obligation and authority, the possibility of legal knowledge, the relationship of law to power, morality, economics and class struggle, and positivism vs. natural law. For those of us comfortable in the tradition, the range of questions appeared to outline an intellectually and politically adequate domain. The basic problems fell neatly into the major philosophical departments of epistemology, logic, value theory and, in some cases, metaphysics, and allowed participation by everyone along the political spectrum from the radical Marxist left through the liberal center to the fascist right.

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Beckerman, John S. "Toward a Theory of Medieval Manorial Adjudication: The Nature of Communal Judgments in a System of Customary Law." Law and History Review 13, no. 1 (1995): 1–22. http://dx.doi.org/10.2307/743954.

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Historical inquiry into the character of local dispute resolution and the operation of customary law in medieval England begins in manorial courts, since it is from those local courts that the most abundant documentation survives. Were the judgments of these courts “principled” in the sense of being rooted in substantive legal rules that courts ordinarily followed, or were they ad hoc determinations based on factual circumstances invisible to the modern reader? Can historians extrapolate behavioral norms and shared cultural values from the manor court records that survive in increasing profusion from the second quarter of the thirteenth century?

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Kay, Tamara. "Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Law." Law & Social Inquiry 36, no. 02 (2011): 419–54. http://dx.doi.org/10.1111/j.1747-4469.2011.01237.x.

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This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross‐border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects).

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von der Groeben, C. "Aida Torres Perez. Conflicts of Rights in the European Union. A Theory of Supranational Adjudication." European Journal of International Law 22, no. 1 (February 1, 2011): 296–300. http://dx.doi.org/10.1093/ejil/chr017.

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Caron, David D. "War and International Adjudication: Reflections on the 1899 Peace Conference." American Journal of International Law 94, no. 1 (January 2000): 4–30. http://dx.doi.org/10.2307/2555228.

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In fact, the first organized communities of international law . . . are organizations the function of which is to settle conflicts.Hans KelsenBut here we shall note the recurrence of a paradox . . . . Where practice is least ethical, theory becomes most Utopian.Edward Hallett CarrThe belief that a world free of war might be possible, be more than simply a dream, is a relatively recent phenomenon. In earlier times, war—like disease—was a part of life. There existed then a fatalism about war that no doubt persists in many parts of the world today. During the nineteenth century, however, parts of the world developed a confidence in progress and a hope that progress might extend to the abolition of war. Most importantly for this essay, a popular belief circulated at the e nd of the century that the establishment of a permanent international court would be an important step toward a world free of war. Ad hoc arbitration, as distinct from adjudication by such a permanent court, was not the same and, by itself, not enough. The 1899 Peace Conference was a point of inflection, a turn in the river, in the effort to move beyond ad hoc international arbitration to adjudication by a permanent international court as a means to avoid war a nd preserve international peace and security.

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Holland, Robert A. "A Theory of Establishment Clause Adjudication: Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to Religious Liberty." California Law Review 80, no. 6 (December 1992): 1595. http://dx.doi.org/10.2307/3480826.

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Somek, Alexander. "The Spirit of Legal Positivism." German Law Journal 12, no. 2 (February 1, 2011): 729–56. http://dx.doi.org/10.1017/s2071832200017077.

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Legal Positivism is dead, isn't it? We are all legal realists now. We believe, by default, that what really matters in law emerges from some judicial process. We sense that the point of norm-production by adjudication is to accomplish something useful or good for either individuals or society at large. Practice trumps theory and policy implementation overrides respect for some scholarly edifice. What we do when we do law is to unreel formula and rhetoric. We engage in these exercises with the aim to have judges rule in favor of our clients. Should we be judges ourselves, we promote causes we deem to be noble and fine. Law is a tool. Skillfully mastered legal knowledge is a prerequisite for using it well.

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Zhao, Jingchen. "Promoting more socially responsible corporations through a corporate law regulatory framework." Legal Studies 37, no. 1 (March 2017): 103–36. http://dx.doi.org/10.1111/lest.12140.

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This paper aims to lay the foundations for a more critical approach to the relationship between corporate social responsibility (CSR) and corporate law. Limitations on legislative approaches including directors’ duties, disclosure of information, sustainable decisions, direct promotion and corporate internal management structure are critically analysed, trying to find well thought-out and effectively implemented adjudication that provides meaningful instruction for regulating CSR. The paper explores the manner in which corporate law may contribute to accommodating CSR principles within corporate strategies, in order to establish a transformative legal regulatory framework within corporate law by using the authoritative legal mode to promote corporate regulatory mechanisms. The paper critically studies a few legislative measures supported by the relevant legislative experiences from various jurisdictions as examples of currently enforced CSR laws at national level, in order to offer comprehensive and potentially effective legislative suggestions for accommodating CSR elements. However, a ‘one size fits all’ approach is clearly not desirable, and these suggestions should be interpreted and implemented in a locally relevant manner, according to path dependence theory.

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Didikin, A. B., and S. A. Aleksandrov. "Patterson D. M. Dworkin on the Semantics of Legal and Political Concepts / trans. from Engl. A. B. Didikin, S. A. Aleksandrov." Omsk Scientific Bulletin. Series Society. History. Modernity 6, no. 2 (2021): 83–93. http://dx.doi.org/10.25206/2542-0488-2021-6-2-83-93.

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In a recent comment on H. L. A. Hart’s «Postscript» to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts maybe understood by analogy to the meaning of natural kind concepts like «tiger», «gold» and «water». This article questions the efficacy of Dworkin’s claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, in matters of value there is no methodological equivalent to the scientific method. Thus, there is little hope of finding hidden essences to explain the meaning of legal and political concepts. Finally, even if there are natural kinds, Dworkin’s arguments for their efficacy in jurisprudence are problematic and unpersuasive. The problem for Dworkin is that his embrace of natural kinds undermines the «fit» side of the fit/justification model of adjudication that lies at the heart of his theory of law

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Goldstein, Abraham S. "Converging Criminal Justice Systems: Guilty Pleas and the Public Interest." Israel Law Review 31, no. 1-3 (1997): 169–82. http://dx.doi.org/10.1017/s0021223700015272.

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It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.

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Benvenisti, Eyal. "Are There Any Inherently Public Functions for International Law?" AJIL Unbound 115 (2021): 302–6. http://dx.doi.org/10.1017/aju.2021.43.

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In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.

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Journal articles on the topic 'Law and adjudication theory'

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