Criticising and Constructing the Orthodoxy

William Lucy

in Understanding and Explaining Adjudication

Published in print September 1999 | ISBN: 9780198260257
Published online March 2012 | e-ISBN: 9780191682070 | DOI:
Criticising and Constructing the Orthodoxy

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Both proponents and critics of accounts of adjudication indiscriminately and simultaneously describe them as either ‘theories’ or ‘models’ or ‘descriptions’ of judicial practice with no attempt to determine whether these words are indeed synonyms, as this usage would suggest, or whether they mark out significantly different enterprises. This chapter considers a prevalent strategy of criticism of orthodox accounts of adjudication and the orthodox understanding of the nature of the enterprise of constructing such accounts. The number of writers from which examples of the former strategy are drawn is a large one, although when speaking specifically there are only two targets at which their criticism is aimed, namely, the accounts of adjudication offered by Neil MacCormick and Ronald Dworkin. It is therefore pleasingly symmetrical that both authors' descriptions of the nature of the enterprise of constructing accounts of adjudication, in conjunction with the views of Joseph Raz, are the basis of most of what follows. This chapter also outlines an often made criticism of the orthodoxy.

Keywords: Joseph Raz; adjudication; orthodoxy; Neil MacCormick; Ronald Dworkin; judicial practice

Chapter.  23610 words. 

Subjects: Jurisprudence and Philosophy of Law

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