The Common Error in Theories of Adjudication: An Inferentialist Argument for a Doctrinal Conception

Abstract

Law is adjudication. Adjudication is not only the center of the law as a social system (Niklas Luhmann), but also what legal practice, legal counselling, trials and procedures are all about. Adjudication in turn is all about hard cases. As Carl Schmitt noted already in 1912: “The cases of doubt are those which attract academic and practical interest.” Correspondingly H.L.A. Hart observed for legal education that penumbral cases are the “daily diet of the law schools”. With adjudication being the center of law and hard cases the center of adjudication, it is most disturbing that there is widespread disquiet about hard cases in legal theory. Through the ages to varying degrees, adjudication in hard cases has not been seen as a legal, but rather as a non-legal, political, economic, moral or otherwise discretionary practice. Increasingly, the task of adjudication in hard cases is claimed to be the province of rival disciplines such as economics – as in law and economics – or the political sciences – as in the growing industry of law and political studies. The tendency of legal theorists to abandon the very heart of the law forms the theoretical background of the essay. The common assumption upon which these tendencies rest holds that, there can be no specifically legal decision-making in cases of legal indeterminacy. This assumption will be refuted by relying mainly on the idea that the law provides for a network of material inferential relations in Robert Brandom’s sense, that has features specific to the law. Next to its orientation in time and its systematicity it is foremost its explicit character that sets the inferential legal network apart from those of other discursive arenas. Decisions taken in the – in large parts explicit – inferential legal network remain specifically legal even in cases in which the law is indeterminate due to the specific inferential commitments undertaken. Although adjudication has to create law in cases of legal indeterminacy, the inferential conditions under which law is created in adjudication distance it from politics, economics and morality in a way that gives it a specifically legal, that is doctrinal, character. Thus an inferential perspective can preserve the specifically legal character of the heart of the law as a professional practice.

Keywords: hard cases, adjudication, Hart, Kelsen, Dworkin, Geny, Ehrlich, legal realism, critical legal studies, naturalism, Luhmann, Weber, Brandom, inferentialism, Lewis, free-law-movement