It's All in the Game

Hutchinson Allan C. Hutchinson

Description

Three questions concerning modern legal thought provide the framework for It's All in the Game: What should judges do? What do judges do? What can judges do? Contrasting his own answers to traditional responses and moving playfully between debates of high theory, daily practices of appellate judges, and his own enlightening analyses of significant court rulings, Allan C. Hutchinson examines what it means to treat adjudication as an engaged game of rhetorical justification. His resulting argument enables the reader to grasp more fully the practical operation, political determinants, and the transformative possibilities of law and adjudication.Taking on leading contemporary theories to explore the claim that "law is politics," Hutchinson delineates a route toward professional, relevant, and responsible-if radical-judicial practices. After discussing the difference between foundationalist, antifoundationalist, and nonfoundationalist legal critiques, he offers a focused, unequivocal, and positive account of the advantages of operating within a nonfoundationalist framework. Although such an approach centralizes the role of rhetoric in law, Hutchinson claims that this does not necessitate a turn away from politics or, more particularly, from a progressive politics. Driving home the political and jurisprudential impact of his critique and of his account of nonfoundationalist alternatives, he urges judges and jurists to engage in law's language game of politics.This engaging book will interest linguistic philosophers, legal theorists, law students, attorneys, judges, and jurists of all stripes.

Sujets

• Philosophie et théologie
• Philosophy of language

Informations

• Publié par: Duke University Press
• Date de parution: 24 janvier 2000
• Nombre de lectures: 0
• EAN13: 9780822380429
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

It’s All in the Game

IT’S ALL IN THE GAME

............

A Nonfoundationalist Account of Law and Adjudication

Allan C. Hutchinson

Duke University Press

...

Durham and London 2000

∫2000 Duke University Press

All rights reserved

Printed in the United States of America on acid-free paper$

Typeset in Minion by Keystone Typesetting, Inc.

Library of Congress Cataloging-in-Publication Data

appear on the last printed page of this book.

To My Dad—Long May He Blow His Whistle ......

Contents ......

2

0

It’s All in the Game: Adjudication in a Nonfoundationalist Way

A Pure Way of Playing: The Naturalist Revival

Playing with the Rules: Experiments in Judging

0

1

320

Overtime? A Conclusion

116

216

288

8

Playing Politics: Putting Poetry in Motion

252

Playing by the Rules: A Good Faith Approach

1

Playing the Game: An Introduction

9

5

ix

Preface

6

Calling the Shots: The Development of Legal Doctrine

7

At Play in the Fields of Law: The Reasoning Game

3

4

2

Index

333

Appendix

1

371

Notes

343

1

1

151

8

Playing with Authority: Interpretation and Identity

The Language Game: From Ambiguity to Indeterminacy

54

180

6

Preface ......

This book is an attempt to provide a sustained and convincing response to a very simple set of concerns:What do/can/should judges do?My focus is upon the interaction of law, politics, and adjudication as it occurs in the largely common law jurisdictions of industrialized nations. I attempt to move back and forth between jurisprudential debates of high theory and the daily practices of appellate judges. The aim is to develop a cogent account of adjudication as an engaged game of rhetorical justification that is both descriptively accurate and prescriptively realizable. As such, I provide an adequate description of what it is that judges do and what it is that jurists (and judges) claim that they are doing. Also, I o√er a viable prescription of what it is that judges can and should do in fulfilling their professional roles and responsibilities. Throughout the book, my emphasis is on developing a better and more sophisticated elaboration of the claim that ‘‘law is politics.’’ My account is meant to be both critical and constructive in equal measure. The motivation behind this book is my felt need to take seriously the institutional and political implications of adopting a nonfoundational cri- tique of law and adjudication. In particular, I grapple with the persistent charge that it is not possible to adopt such an ungrounded jurisprudential approach (or what is unhelpfully called a ‘‘postmodern’’ approach) and, at the same time, remain committed to a progressive kind of politics. As such, this project is a jurisprudential exercise in good faith—I try to follow these nonfoundational ideas to wherever they might lead me. My pressing con- cern has been to ensure that my critique did not turn into a pseudo or faux politics that was long on posturing and short on bite: a species of middle- class theorizing that paid only lip service to the progressive commitment to overcoming oppression and alleviating su√ering. Whether I have succeeded in meeting that challenge is for the reader to judge, but I believe that I have provided a convincing response to those who view a nonfoundational ac- count as reactionary and quietistic. While my account will not satisfy those who crave certainty and dogma in political struggle, I do insist that the turn