Browsing by Author "Freno, Nigel Kane"

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    Towards the Ideal: Coherence Theories of Judicial Adjudication and the Ideal Law in Hard Cases
    (2020-09-17) Freno, Nigel Kane; Habib, Allen; Hagen, Gregory R.; Levey, Ann
    It will be argued that that methodology developed in this thesis, known as ‘ideal law methodology’, provides a better alternative to coherence theories of judicial adjudication in adjudicating hard cases. After framing the discussion within the context of Angelo-American legal theory, hard cases, and stare decisis, coherence theories of judicial adjudication will be presented and shown to suffer from conservatism. This will be argued to create problems both in unjust and just societies. The ideal law methodology, which is adapted from arguments from Robert Alexy, will be then be presented. The ideal law methodology uses narrow reflective equilibrium to determine principles of a political community, and then determines and chooses the decision with the largest weighted aggregate realization of principles. It will be argued that the ideal law methodology presents a better method for determining hard cases than coherence theories of judicial adjudication by being adaptive to the community’s political beliefs and thus avoiding conservatism. A number of objections to the ideal law methodology will then be addressed, both from coherence theories of judicial adjudication and elsewhere.