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Title: Towards a theory of adjudication : some issues of method and principle
Author: Brady, Paul
ISNI:       0000 0004 5353 986X
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2014
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A sound theory of adjudication and of judicial duty requires or presupposes a sound theory of law and of legal argument. Jurisprudential inquiry is properly grounded not in reflections on conceptual properties of law but in reflections on human goods and needs as understood in a morally articulated theory of practical reason and compactly expressed in the normative concept of the common good. Such reflections confirm that law exists, in its central case, as a means to various types of authoritative co-ordination solutions. The underdetermined nature of (a) the positive requirements of practical reasonableness and the common good and of (b) the appropriate means of enforcing compliance and remedying non-compliance with either these requirements or the determinate negative precepts of practical reasonableness entails that a practically necessary aspect of the positive law’s role is constituting the requirements of justice, i.e. of what is due to whom generally and in particular situations (including situations where an injustice has been or is alleged to have been done). As a distinct and practically necessary mode of legal co-ordination for the common good, adjudication, in its central case, answers litigated questions of justice by applying all relevant law in accordance with the legal system’s practice of legal argument. Thus adjudication is performed by authoritative law-applying institutions precisely because it is about answering questions of justice, and not despite that fact. Theories of law developed on the assumption that it is possible to understand the ‘what’ of law without reliance on any moral judgments deny any practically necessary connection between (a) the promotion of justice and the common good and (b) the nature of law, in its central case, and, hence, the adjudicative application of the law. In the absence of this connection a judicial duty to do justice according to law is unintelligible.
Supervisor: Finnis, John Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Ethics and philosophy of law ; Legal philosophy ; Philosophy of law ; Jurisprudence ; Adjudication ; Judicial Duty ; Methodology ; John Finnis ; Natural Law ; Thomas Aquinas