The Legitimacy of Judicial Decision-Making: Towards Empirical Scrutiny of Theories of Adjudication

Abstract

Jurisprudential accounts of judicial decision-making encompass a conceptual account of how judges decide cases and a normative account of how judges should decide cases. This paper explores the conceptual and normative dimensions of theories of adjudication and argues that these theories must be held to empirical scrutiny. The conceptual dimension of theories of adjudication clarifies what is necessarily true about judicial decision-making. The normative dimension of theories of adjudication explains how judges legitimately exercise judicial power through adjudication. In this paper, it is argued that empirical insights may shed light on the plausibility of the legitimacy claims of theories of adjudication, given the fact that these normative claims build on the descriptive dimension of these theories. Hart and Dworkin’s theories of adjudication are discussed to illustrate a narrow and wide conception of legitimacy in the context of judicial decision-making. The last part of this paper explores how empirical research based on interviews may be helpful to assess the conceptual and normative claims of Hart and Dworkin’s theories of adjudication.