PARTICIPATION, REPRESENTATION, AND PRINCIPLED ADJUDICATION

Extract

A central concern of theories of adjudication is the question of whether that form of decision-making is more a matter of existing entitlements or of prospective rules. Sometimes the question is stated in terms of “principle” versus “policy”: Must a judge decide on the basis of existing principles, or may she take into account the best policy for the future?See, e.g., Ronald Dworkin, LAW’S EMPIRE 27–29 (1986) (hereinafter Dworkin, LAW’S EMPIRE); Ronald Dworkin, Hard Cases, in Ronald Dworkin, TAKING RIGHTS SERIOUSLY 81, 82–84 (1978). Sometimes the question is put in terms of “individual rights” versus “the common good”: Must a judge render only the decision that best implements the existing rights of the parties, or may she consider what impact her decision will have on the good of the community as a whole?It is this dichotomy, I think, that Lon Fuller had in mind when he wrote that “whatever [courts] decide, or whatever is submitted to them for decision, tends to be converted into a claim of right or an accusation of fault or guilt.” Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 369 (1978).