A Private Law Theory of Adjudication Embracing Value Pluralism, Deliberative Democracy and Constitutionalism

Abstract

This paper presents a private law adjudicative theory that addresses value pluralism, embraces deliberative democracy and accommodates constitutionalism. It posits a methodological analytical framework that explicates how legal rules and doctrines apply or evolve, an ideal normative approach to balancing and weighing principles, policies and values that underlie legal rules and doctrines, and positions the courts as participants in a deliberative democratic process together with litigants, the political branches and the localised community. The adjudicative theory will then be tested on a case study of the forfeiture rule in Dunbar v Plant.

Keywords: private law, jurisprudence, adjudication, value pluralism, deliberative democracy, constitutionalism, rules, principles, doctrines, forfeiture rule