The Judges’ Law

Did you always want to know what my dissertation is about? Let me tell you!

I have occasionally mentioned the doctoral thesis I have been working on for the past four and a half years, and even posted a few tidbits (here, here, and here). But I don’t think I’ve ever even explained what the damned thing is about. Yet it is ― until I defend it, hopefully this spring ― after all, my “day job.” Anyway, I was recently asked to produce an abstract of the thing, and I figure that, having done so, I might as well share it. Here it is.

The Judges’ Law

As citizens of democratic polities we mostly share an ideal of self-government, according to which the laws under which we live ought to be made by legislatures which we elect and which act on our behalf. Yet rules articulated by courts in the course of adjudication―which I refer to as “adjudicative law”―form a non-negligible, and in common law jurisdictions a very significant, part of the law of the law of such polities. This is a study of these rules: of the context in which they are articulated, of their origins, and of their legitimacy in a democracy.

I begin by describing the environment in which adjudicative law emerges. First, I survey some constraints that judicial adjudicators face: a duty to attend to the arguments put forth by the parties, to decide the dispute, to do so in accordance with a general rule, to give reasons for their decision, and to uphold and preserve the law’s coherence. Second, I consider a number of characteristics of courts as institutions, including judicial independence, judicial training, and collective decision-making on appellate courts. Third, I review the rules of justiciability and evidence, insofar as they influence the articulation of adjudicative law.

I then examine the sources from which the rules of adjudicative law are drawn. After reviewing of the some academic writings on this point, I consider the reasons given by courts in a number of important, precedent-setting cases drawn from a variety of areas of the law. The main sources of adjudicative law I describe are underlying legal principles, social practice, and judicial fiat implementing a court’s policy judgment.
Having thus described some salient characteristics of adjudicative law, I turn to the question of its legitimacy in a democratic polity, focusing on four themes. The first is democracy, in connection with which I address the issue of the democratic deficit of adjudicative law and the argument that it can claim a democratic legitimacy that does not rest on the ballot box. Second, I consider the quality of adjudicative law, its fitness for purpose. Under this heading, I assess some issues with the courts’ institutional competence, on the one hand, and the claims that adjudicative law stands in a privileged relationship with reason, on the other. Third, I address the question of whether adjudicative can satisfy the requirements of the Rule of Law. Finally, I consider the relationship between adjudicative law and the past, focusing on the principle of stare decisis.

The outcome of this re-assessment is a nuanced one. Adjudicative law suffers from undeniable weaknesses, when compared with legislation―or at least with legislation as it might be, and not necessarily as it actually is. But the gravity of these weaknesses varies across areas of the law and depends on the specific institutional arrangements used in each legal system. It is best, I conclude, to refrain from across-the-board condemnations or endorsements of adjudicative law, and consider each case in its own context and on its own merits.

We are, I explain in conclusion, bound to live with adjudicative law, flawed though it may be. Yet its flaws can be addressed to some extent, even within the framework of our current institutional arrangements. These remedies, which I briefly outline, will not make the problems of adjudicative law disappear, but they may somewhat improve the situation. Since adjudicative law is with us to stay, even slight improvements would be worthwhile.