Abstract
In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution to the republican cause of promoting freedom from domination; second, their suitability to the characteristic features of legal systems; and third, their impact on long-run institutional stability. According to these criteria, a republican theory of adjudication would hold that judges and other legal officials should strive in their decisions and interpretations to maintain and enhance the distinctive value of the rule of law.
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Notes
See especially Pettit (1997, 2012), Viroli (2002), Maynor (2003), Laborde and Maynor (2008), and Lovett (2010); or for an overview, Lovett and Pettit (2009). Note that I here distinguish civic or ‘neo-Roman’ republicanism from the participatory republicanism or ‘civic humanism’ associated with Hannah Arendt and others.
Note that a complete theory of adjudication need not assign the same duties to all legal officials (judges, prosecutors, police, jurors, etc.), but the discussion here will gloss over such details.
Leaving aside, for the moment, cases in which it is the facts that are unclear. Often the law will provide guidance in such cases (specifying standards of proof, for instance), but regardless, such issues are not matters of legal interpretation as understood here.
Such cases are discussed in Dyzenhaus (2010, esp. chs. 2–6).
Note that we can remain agnostic as to the relative proportions of easy, hard, and difficult cases: so long as at least some cases are hard, the issues discussed in this paper will be relevant.
This was more or less the situation presented in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916); see Strauss (2010, pp. 80–85) for a nice discussion.
It follows from this last point that the same set of explicitly enumerated formal rules may yield very different normative social orders in different cultural communities. Herein lies the truth in Cover’s (1993, ch. 3) argument that a legal system can arise only through an intersection of formal rules with a determinate lived culture.
410 U.S. 113 (1973).
Ward (2002, pp. 55–62) correctly observes that many accounts of adjudication fail to recognize this dependence.
For examples, see n. 1 above.
I will not consider in this paper whether the same theory of adjudication might not also be supported by other political doctrines as well (utilitarianism, liberal egalitarianism, etc.); if it can, of course, so much the better.
This framing is due to Pettit (1997, ch. 6), and has been adopted by many contemporary civic republican writers.
This tension might be articulated theoretically as a tension between legitimacy and justice. The most legitimate political system, on the republican view, would be the one least likely to itself inflict domination on its citizens; a somewhat less legitimate state, however, might be more just if it manages to reduce more domination from other sources in society than it introduces through its own activities. Pettit (2012) can be read as an attempt to resolve this tension.
Here I merely gesture towards a broader republican account of institutional design. Historically speaking, the classical republicans generally advocated dispersing political authority over multiple agents via what they described as a ‘mixed constitution’. For further discussion, see Pettit (1997, pp. 177–180).
While it is true that the police, for instance, must sometimes interpret rules of law in order to apply them, such interpretations are provisional: people are not imprisoned or fined until courts conclude that there has indeed been a breach of law.
See also Honohan (2009) for a similar view. Both authors, however, discuss reducing domination in the political sphere only.
Cf. Ward (2002, pp. 73–99), who argues that courts are well-suited to deciding controversies, but not to permanently fixing constitutional meaning.
Or at any rate, it usually will in passably decent political regimes. By contrast, it is possible that upholding the rule of law in an especially evil regime may do little good, in which case the broader moral obligations of legal officials might assume priority over their institutional obligations. There is some evidence, however, that this path should not be taken hastily: authoritarian regimes can bypass courts altogether when they are found insufficiently compliant, in which case it will no longer matter what legal officials do (see Pereira 2008). I am grateful to an anonymous reviewer for highlighting this important issue.
Note that in societies characterized by reasonable pluralism, this might entail being sensitive to local variations in expectations: see Cover (1993, ch. 3).
These issues are central to Rawls’s concerns in the third part of A Theory of Justice (1971).
Less plausible theories, of course, might disagree. For example, certain ideological approaches to adjudication (fascist, communist, etc.) might hold that political considerations should sometimes trump legal considerations even in easy cases.
It is less clear on this theory what duties of adjudication fall on other legal officials. For instance, should the police likewise strive to see that justice is done whenever rules they are charged with enforcing are unclear or ambiguous?
One example of an activist theory might be the pragmatist approach discussed and critiqued in Dworkin (1986, esp. ch. 5); the integrity approach Dworkin himself prefers (Dworkin 1986, esp. chs. 6–7) represents a more moderate activism in which legal officials resolve hard cases in light of the best normative justification for the legal materials available.
See n. 10 above, and 347 U.S. 483 (1954) respectively.
See n. 7 above.
Textualism, originalism, and doctrinalism are examples of this sort of theory. As in the case of an activist theory, we might again wonder whether the duty of restraint is supposed to apply to all legal officials, including the police, public prosecutors, and so forth.
See Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987 (1939).
This problem of ‘bad faith’ is analyzed extensively in Kennedy (1997).
With suitable refinement, the republican theory of adjudication might be extended to all legal officials: it is more plausible in my view to say that the police, for instance, should strive to ensure that people generally experience coercion only as the public sanctions attached to known social rules, than it is to say either that they should strive to realize justice directly, or that they should strive to enforce the letter of the law regardless of circumstances.
Here I follow the illuminating discussion of Brown in Strauss (2010, pp. 85–92).
See n. 35 above.
It does not follow, however, that Roe should be overturned. Having been declared and repeatedly reaffirmed, reasonable expectations have now been built around abortion rights. Insofar as the republican theory of adjudication directs legal officials to respect reasonable expectations, it will place considerable weight on the principle of stare decisis.
It is beyond the scope of this paper to consider what this means in terms of the details of judicial review, but it would certainly involve limiting the scope of that authority considerably.
Or at least it usually will if the political regime is passably decent: see n. 25 above.
Solum (1994), however, points out that we might consider how different approaches to such difficult cases might affect a legal official’s settled disposition to respect his duties of adjudication in normal cases. To the extent that he is right, we might indeed extract some guidelines for difficult cases from our theory of adjudication.
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The author would like to thank James Josefson, Andy Sabl, Melissa Schwartzberg, Ryan Pevnick, and two anonymous reviewers for their comments on earlier drafts of this paper.
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Lovett, F. A Republican Theory of Adjudication. Res Publica 21, 1–18 (2015). https://doi.org/10.1007/s11158-014-9257-7
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DOI: https://doi.org/10.1007/s11158-014-9257-7