The Constitutional Law and Politics Working Group invites you to discuss adjudicative theory beyond the separation of powers and judicial reasoning.
Abstract
Adjudicative theory does not really exist, although many scholars write about adjudication. This paper is an attempt to bring together a diverse set of reflections that can fall under this description—from constitutional and philosophical scholarship—in order to illuminate what judging consists in, in order to better judge judges in their capacity as judges (rather than on the basis of some external normative criterion). The value of this inquiry lies in the fact that critiques of judges and judging at the constitutional, political and international levels often rely on some form of unarticulated adjudicative theory. It is the purpose of this essay to give structure to these discussions by identifying the shape of adjudication, beyond the usual two themes that dominate it, namely the separation of powers and judicial reasoning. I argue that adjudication covers three basic aspects: a relational aspect, a representational aspect and a technical aspect. The first and last of these aspects is often covered under the themes of the separation of powers (in constitutional law) and of judicial reasoning (in legal theory). I argue, first, that these two aspects cover broader questions, and, second, that the representational aspect—the aspect that invites judges to consider how to interpret, including in doubt, and when to defer to, and empower, the judgment of other authorities (agencies, citizens, politicians, scientists…)—is seldom taken into consideration as an equally important dimension of adjudication, often due to distorsions of, or misconceptions about, the idea of separating powers.
Register