Theories of Adjudication

Theories of AdjudicationRaabia Abuzer Shams


‘Adjudication’ means the legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. It includes the entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue or issues involved and the equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest.

Three types of disputes are resolved through adjudication:

disputes between private parties, such as individuals or corporations;

disputes between private parties and public officials; and

disputes between public officials or public bodies.

The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and an opportunity for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable settlement of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.

The adjudication of a controversy involves the performance of several tasks. The trier must establish the facts in controversy, and define and interpret the applicable law, or, if no relevant law exists, fashion a new law to apply to the situation. Complex evidentiary rules limit the presentation of proofs, and the Anglo-American tradition of Stare Decisis, or following precedents, controls the outcome. However, the process of applying established rules of law is neither simple nor automatic. Judges have considerable latitude in interpreting the statutes or case law upon which they base their decisions.

Judgements: Are they laws?

An age-old question that still plagues legal theorists is whether judges “make” law when they adjudicate. Sir William Blackstone believed that judges do nothing more than maintain and expound established law (Commentaries on the Laws of England); other writers vehemently disagree. Some legal analysts maintain that the law is whatever judges declare it to be. Echoing those sentiments, President Theodore Roosevelt asserted that “the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret … they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making” .

Supreme Court Justice Cardozo, writing in The Nature of the Judicial Process, argued that the law is evolutionary and that judges, by interpreting and applying it to specific sets of facts, actually fashion new laws.

Whether judges are seen as making law or merely following what came before, they are required to operate within narrow strictures. Even when they are deciding a case on the basis of first impression (a question that has not previously been adjudicated), they generally try to analogize to some existing precedent. Judges often consider customs of the community; political and social implications; customs of the trade, market, or profession; and history when applying the law. Some, such as Justice Oliver Wendell Holmes and Justice Cardozo, thought that considerations of social and public policy are the most powerful forces behind judicial decisions.

A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to an adjudication. Anglo-American law presumes that the parties to the dispute are in the best position to know the facts of their particular situations and develop their own proofs. If the hearing is before a court, formal rules of procedure and evidence govern; a hearing before an Administrative Agency is generally less structured.

Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appealed to a higher tribunal (a court of appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well-reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it.

Adjudication of a controversy generally ensures a fair and equitable outcome. Because courts are governed by evidentiary and procedural rules, as well as by ‘stare decisis’, the adjudicative process assures litigants of some degree of efficiency, uniformity, and predictability of result.

The purpose of adjudication is to provide justice to the aggrieved party in any said dispute. Parties come to Court only when any alternate dispute mechanism doesn’t work. The experience of the Judges, who are the adjudicators, in deciding the cases, helps in determining the ‘right’ decision and granting relief to one of the parties.

No time is wasted with partisan tactics and delays. It commences immediately with an analysis of the applicable legal authorities and identification of the evidence that supports the positions of each party to the dispute. The adjudicator promptly examines material witnesses under oath in the locations where they are found.


Theories of Adjudication

The relevance and applicability of different decisions given by different adjudicators creates a lot of confusion in any legal system. Further, questions have always been raised as to whether certain judgements or methods of adjudication are acceptable or not. This confusion is yet to be at bay. But several jurists and legal thinkers have given their own theories as to what should constitute the basis for adjudication by Judges in any Court of law.

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was a well known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Cardozo served on the Supreme Court only six years, from 1932 until his death in 1938, and the majority of his landmark decisions were delivered during his eighteen year tenure on the New York Court of Appeals, the highest court of that state.

His theory is the first that deserves mentioning. Cardozo was a realist. He totally rejected the Austinian concept of logical interpretation of law and his analytical approach to the judicial process and he emphasised on his need to interpret the law in the light of the social necessities and realities of life. In his most renowned work, ‘The Nature of the Judicial Process’, he stated,

“The judicial process is one of compromise between paradoxes, between certainty and uncertainty, between the literalism that is exaltation of the written word and the nihilism that is destructive of regularity and order.”

He said that Judges, while adjudicating upon a case generally keep a subjective view of the problem at hand and thus complete justice is never attained. No matter how much a Judge may try to be objective in his decision, at some point or another he lets his own beliefs, traditions or morals get in the way f adjudication. He said that in order to give out justice, they need to set aside any subjective approach and apply the law objectively in each case, keeping in view the prevailing traditions, customs, morals, and needs of the society.


He was primarily concerned with two aspects of the law:

1. How judges need to decide the cases before them?

2. How law itself evolves and grows in the society.

According to Cardozo, Judges cannot keep themselves secluded from social realities and developments in other fields of social sciences which have a direct bearing upon the life of the people. Therefore, law must be kept at pace with the rest of the society and shape itself according to various social developments to attain the ends of justice.

He stated that all adjudication is ‘experimental’ and that each new case was an experiment in itself, where the rules applied in previous cases of similar nature may be used. He gave great importance to precedents. In his own words,

“Every judgment has a generative power. It begets in its own image. Every precedent, in the words of Redlich, has a “directive force for future cases of the same or similar nature.” It is the source from which new principles or norms may spring to shape sentences thereafter. If we seek the psychological basis of this tendency, we shall find it, I suppose, in habit.”

He called precedents ‘the living form of law’.

The next theory of adjudication that is important for our purpose of study is that given by Holmes.

Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932. he is one of the most widely cited United States Supreme Court justices in history. He was one of the most influential American common law jurists and served as an Associate Justice and as Chief Justice on the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at the Harvard Law School, of which he was an alumnus.

Holmes compared the Law to a bad man “who cares only for the material consequences of things” rather than as an independent moral entity. Holmes defined the law in accordance with his pragmatic judicial philosophy. Rather than a set of abstract, rational, mathematical, or in any way unwordly set of principals, Holmes said that, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law would be in a position to fulfil his functions properly.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes, “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.

In Lochner v. New York (1905) he observed that,

“General proposition do not decide concrete cases.”

Holmes also insisted on the separation of “ought” and “is,” which are obstacles in understanding the realities of the law. As a moral skeptic, Holmes stated that if you want to know the real law, and nothing else, you must consider it from the point of view of a “bad man” who cares only of the material consequences of the courts’ decisions, and not from the point of view of a good man, who find his reasons for conduct “in the vaguer sanctions of his conscience.”

Ronald Myles Dworkin also gave a theory of adjudication. He is an influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for “his pioneering scholarly work” of “worldwide impact.” According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.

“Judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract” (p. 90).


The Chain Novel Analogy

• Each judge functions like a writer in a chain novel. The current judge’s job is to “go on from here” in the best way possible.

• That puts constraints on the judge to incorporate previous legal decisions, legal principles and rules in such a way as to tell the most justifiable story about the law.

• Previous chapters have been written;


Dworkin’s Theory of Adjudication

• “Going on from here” is not just a matter of applying rules.

• Nor is it just a matter of applying your own moral standards to decide cases when the “rules run out”.

• It involves searching for underlying principles of law that render the law at once coherent and morally and politically justifiable.


Criticism of Dworkin’s Naturalism

• The positivist can accept all of Dworkin’s theory of adjudication with the exception of the claim that there are standards of interpretation that require legal decisions to be as morally and politically defensible as possible.

Dworkin’s Claims

• Legal principles are:

• Not reducible to legal rule

• Binding on judges

• Therefore, positivism’s focus on law as a system of rules is distorting—especially of the process of judicial adjudication.



Thus, it is safe to say that there never has been and probably will never be entire uniformity among jurists and legal thinkers as to what constitutes judicial process, which principles must be consulted by the Judges when making decisions and what is law.

There will always be diverging views related to the field of what constitutes law and the major aspects affecting it. Since time immemorial, each society has advanced in its way of thinking and as new aspects of adjudication were conjured, changes were brought about in that legal system, sometimes by practice, usage by the Courts and at other times thrugh legislative action.

All that can be hoped is that in an attempt to lay down ground rules for the same, no society or legal system suffers in the way of granting justice, which is and should be the sole aim of every such legal system.