Making Sense of Judicial Lawmaking: a Theory of Theories of Adjudication

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.