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Understanding and Explaining Adjudication$
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William Lucy

Print publication date: 1999

Print ISBN-13: 9780198260257

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198260257.001.0001

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Constructing the Heresy

Constructing the Heresy

(p.186) (p.187) 5 Constructing the Heresy
Understanding and Explaining Adjudication

William Lucy

Oxford University Press

For many heretics, the rational reconstruction of judicial decisions is not an intellectually viable option, since they believe that adjudication cannot be rational in the first place. There is a more radical heretical response to law and legal scholarship which is also echoed in the new art history. Both orthodox doctrinal scholarship and legal philosophy unite behind the banner of sympathetic, rational reconstruction. It is a style of scholarship that is neither fawningly quiescent nor sceptically dismissive towards the existing legal system and its doctrines. Whereas the jurisprudential and doctrinal orthodoxy explicitly invokes the internal point of view — from which is derived a commitment to consistency, coherence, and rational reconstruction — the heresy explicitly or implicitly rejects that method. The initial step for the heretic is to loosen the hold of the Verstehen method, and the commitment to consistency, coherence, and rational reconstruction the orthodox think it yields over legal thought.

Keywords:   heresy, rational reconstruction, judicial decisions, adjudication, art history, legal philosophy, orthodoxy, legal thought, coherence, Verstehen method

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