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Making Sense of Judicial Lawmaking: a Theory of Theories of Adjudication
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1830-7728
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EUI MWP; 2008/09
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DYEVRE, Arthur, Making Sense of Judicial Lawmaking: a Theory of Theories of Adjudication, EUI MWP, 2008/09 - https://hdl.handle.net/1814/8510
Abstract
Engaging with the literature on courts and judicial politics, this article argues that one
should distinguish between three theoretical approaches to adjudication and,
correspondingly, three families of theories of judging: socio-political, legal-positivist,
and normative-prescriptive. Socio-political theories are concerned with the causes of
judicial behaviour, whereas legal-positivist theories focus on the relations between the
decisions of the courts and the other rules of the legal system. Normative-prescriptive
theories of adjudication, on the other hand, are concerned with the moral evaluation of
judicial behaviour and judicial institutions. Although interrelated in various ways, the
three approaches should nonetheless be viewed as complementary rather than
competing approaches to adjudication. Thus expounding what amounts to a meta-theory
of adjudication, the article offers a general theoretical framework aimed at facilitating
dialogue and cross-fertilisation among the disciplines that study courts and judges:
political science, sociology, law, and political philosophy.