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date: 23 January 2019

Abstract and Keywords

This article introduces the rationality and legitimacy conditions and positions them within contemporary sceptical and non-sceptical accounts of adjudication. Two sections are concerned with non-sceptical accounts of adjudication. The next section begins with an analysis of the rationality condition. The article moves on to show that the existence of incommensurability in hard case adjudication ensures that adjudication cannot be rational in the strong sense. It demonstrates that values are implicated within the practice of adjudication, by reference to some examples and by invoking an old jurisprudential lesson about the nature of rule application and interpretation. This article further discusses value pluralism and sketches three claims. It argues that it is difficult to show that rationally indeterminate judicial decisions are legitimate. This article concludes that law and adjudication may not be as pre-eminently desirable as often assumed, since they are not more rational than other non-arbitrary means of organizing our collective life and resolving disputes.

Keywords: rationality, legitimacy, non-sceptical, incommensurability, pluralism

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