A Critique of Adjudication (Fin De Siecle)

Abstract

This book explores the role of political ideology, in the simple sense of, say, "liberalism" and "conservatism," or "states' rights" and "abolitionism," in law making. I argue that judicial law making has been the vehicle of ideological projects, just as legislative work is such a vehicle, although ideologically oriented legal work is different from ideologically oriented legislative work.It is sometimes plain that judges experience themselves as constrained by the doctrinal materials to reach particular solutions, even if they work in a medium saturated with ideology. But they always aim to generate a particular rhetorical effect through this work: that of the legal necessity of their solutions without regard to ideology. They work for this effect against our knowledge of the ineradicable possibility of strategic behavior in interpretation, by which I mean the externally motivated, ideological choice to work to develop a particular solution rather than another.Adjudication has at least three ideological effects. First, the diffusion of law-making power reduces the power of ideologically organized majorities, whether liberal or conservative, to bring about significant change in any subject-matter area heavily governed by law. It empowers the legal fractions of intelligensias to decide the outcomes of ideological conflict among themselves, outside the legislative process. And it increases the appearance of naturalness, necessity, and relative justice of the status quo, whatever it may be, over what would prevail under a more transparent regime. In each case, adjudication functions to secure both particular ideological and general class interests of the intelligensia in the social and economic status quo.Adjudication also sustains the belief that rights exist. The critique of adjudication has sometimes been implicated in the loss of faith in rights.Finally, our ambivalent belief in the possibility of legal rationality reinforces the notion that there are expert discourses to which a practitioner can pledge faith, not just outside but against ideology.