Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

Abstract

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

Legal Form, COVID and the Political: Notes Towards a Critique of the Corpus Iuris Pandemici

“…Whereas the presence of conflicts is rather obvious in the case of adjudication (where the clash of interests of plaintiffs and defendants is plainly visible), conventional jurisprudence is prone to prioritising order and harmony when speaking about constitutionalism, legislation, or even regulation and administrative action (Mańko 2020d, 31-32). However, even in the case of adjudication critical legal theory goes beyond what the conventional legal theorist is prepared to accept, namely by extrapolating the individual conflicts of interests (plaintiff vs. defendant) towards collective conflicts which constitute the juridical reflection of economic and ideological conflicts nurturing any society (Kennedy 1997;Mańko 2021). The most obvious ones are class conflicts, reflected within the juridical in the guise of three typical antagonisms: worker v. employer; tenant v. landlord; consumer v. trader (Mańko 2020c;Mańko 2020d).…”