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This subject seeks to understand how judges arrive at judgments and thus the complex question of adjudication. By examining key elements of the vast literature that has analysed the process of adjudication, the course attempts to develop the conceptual tools by which each student can approach the reading of judgments of courts. The subject then intensively discusses a number of important cases from various jurisdictions – the United Kingdom, the United States, Australia, South Africa and Canada. By applying the insights learned from the earlier conceptual discussion, the course examines the judicial mind that has given rise to the judgments so studied. In this way, the subject talks to practitioners who litigate and can reflect on the means of help shaping the judgment they so seek, as well as to those lawyers who wish to develop a comprehensive understanding of both the theory and practice of adjudication.
Principal topics include:
- A critical reading of key texts – Hart, Raz, Fuller, Dworkin, Habermas, Derrida and Kennedy
- Language, linguistic theory and the law
- Reading judgments (Australian and comparative) – both in the area of constitutional/human rights law and private law
- The impact of political emergency upon the judicial function/adjudication.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have a sophisticated awareness of the range of factors that shape a judgment
- Understand and be able to evaluate the weight of precedent, legal discourse, political ideology, judicial philosophy and advocacy upon the outcome of the case
- Be able to critically evaluate the key academic texts that have set out the main theories of adjudication, at an advanced level
- Have heighted critical capacities to understand judgments and to examine legal developments through the courts by employing a theory or theories of adjudication.
Last updated: 30 October 2020