The Politics of Adjudication

The Politics of Adjudication addresses the pragmatics of legal decision-making. Against a dominant constitutional paradigm that has asserted the primacy of ideals of independence and impartiality in governing the organisation and conduct of the judiciary, a more critical constitutional tradition has been sceptical about the possibility of genuine judicial neutrality and independence. Those in the critical tradition have, however, been relatively unconcerned about the implications of their critique for the organisation and conduct of the judiciary, and there has been little systematic attempt to explore alternative models of judicial legitimacy, once the ideals of independence and impartiality have been displaced. Accepting that adjudication is a value-laden process, this book also accepts the importance of the constitutional ideals of judicial independence and impartiality, both pragmatically – their popular appeal shows no sign of weakening – and normatively – there are a number of strong reasons why these principles are central to our ideas about what constitutes fair adjudication.

The Politics of Adjudication thus focuses upon how the tension between these two positions may be negotiated. This is a question of politics, according to which constitutional law is not, it is argued, the instantiation of timeless and universal principles of governance; but a discourse aimed at producing workable solutions, rather than right answers, to the problem of how to govern legitimately and effectively in particular contexts.