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A Matter of DisputeMorality, Democracy, and Law$
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Christopher J. Peters

Print publication date: 2011

Print ISBN-13: 9780195387223

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195387223.001.0001

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democratic adjudication

democratic adjudication

Chapter:
(p.141) 5. democratic adjudication
Source:
A Matter of Dispute
Author(s):

Christopher J. Peters (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195387223.003.0006

This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal rules can help avoid and resolve disputes, their inevitable indeterminacy means that, despite the aspirations of legal formalists, procedures of adjudication must be developed to apply them in particular circumstances. These adjudicative procedures themselves must be reasonably competent and impartial in order to possess authority. The participation that characterizes the “adversary system” of adjudication, and the interest representation that characterizes the common law, both contribute to the competence and impartiality of adjudication and thus to its authoritativeness. Adjudication derives additional authority when it seeks to interpret democratic statutes by implementing their linguistic intentions and their justifications.

Keywords:   legislation, statutes, general rules, legal rules, legal formalism, impartiality, decision-making competence, adjudication, adversary system, legal interpretation

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