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Understanding and Explaining Adjudication$
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William Lucy

Print publication date: 1999

Print ISBN-13: 9780198260257

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198260257.001.0001

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Criticising and Constructing the Orthodoxy

Criticising and Constructing the Orthodoxy

(p.44) (p.45) 2 Criticising and Constructing the Orthodoxy
Understanding and Explaining Adjudication

William Lucy

Oxford University Press

Both proponents and critics of accounts of adjudication indiscriminately and simultaneously describe them as either ‘theories’ or ‘models’ or ‘descriptions’ of judicial practice with no attempt to determine whether these words are indeed synonyms, as this usage would suggest, or whether they mark out significantly different enterprises. This chapter considers a prevalent strategy of criticism of orthodox accounts of adjudication and the orthodox understanding of the nature of the enterprise of constructing such accounts. The number of writers from which examples of the former strategy are drawn is a large one, although when speaking specifically there are only two targets at which their criticism is aimed, namely, the accounts of adjudication offered by Neil MacCormick and Ronald Dworkin. It is therefore pleasingly symmetrical that both authors' descriptions of the nature of the enterprise of constructing accounts of adjudication, in conjunction with the views of Joseph Raz, are the basis of most of what follows. This chapter also outlines an often made criticism of the orthodoxy.

Keywords:   Joseph Raz, adjudication, orthodoxy, Neil MacCormick, Ronald Dworkin, judicial practice

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