William Lucy

in Understanding and Explaining Adjudication

Published in print September 1999 | ISBN: 9780198260257
Published online March 2012 | e-ISBN: 9780191682070 | DOI:

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Contemporary accounts of adjudication can be divided into those that are ‘orthodox’ and those that are ‘heretical’. Orthodox accounts of adjudication refer to those that, on the whole, fall within the positivist tradition in Anglo-American legal theory. Exemplars of this tradition include Neil MacCormick, Joseph Raz, and Ronald Dworkin. Translated into the field of doctrinal legal scholarship, the orthodoxy becomes ‘rational reconstruction’. That is, orthodox doctrinal scholars take their task to be a good faith rebuilding of the law from the sometimes imperfectly expressed statements of it contained in judicial decisions and statutes. American scholars are by far the most influential proponents of heretical accounts of law and legal reasoning. However, the reasons that restrict the range of orthodox works considered in this volume hold good in relation to heretical work, with the added caveat that there may indeed be important differences between geographical instances of the heresy. This chapter is primarily concerned with the writings of Roberto Unger, Duncan Kennedy, Mark Kelman, Joseph Singer, Clare Dalton, Drucilla Cornell and Pierre Schlag.

Keywords: Joseph Raz; adjudication; orthodoxy; heresy; legal theory; Ronald Dworkin; rational reconstruction; legal reasoning; Roberto Unger; Duncan Kennedy

Chapter.  20839 words. 

Subjects: Jurisprudence and Philosophy of Law

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