Toward a Concrete Temporality of Adjudication: Law’s Subject and Event

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Abstract

This thesis claims that temporality can provide a novel means through which to distinguish between different types of judgment. Specifically, it focusses upon how the adjudicative process determines factual construction and argues that the resultant construction is, at least in part, contingent upon temporality.As the first of two starting points, the thesis begins by rejecting the subsumption thesis of judgment which states laws simply subsume facts that they ‘correspond to’. It attributes this rejection to the generality of laws and their flexibility as either rules or standards. Second of the two starting points, though related to the first, is what the thesis refers to as the ‘Kantian axiom’ which argues that time shapes consciousness. Extending this, the thesis posits that, filling in the lacuna created by the shortcomings of the subsumptive theory of judgment, adjudication’s temporality shapes its factual construction.Having established these preliminary points, the thesis describes the different ends of a spectrum of judgment in which legal decisions can tend toward. Adjudication as Cognition (abstract judgment), predicated I argue on a spatial-temporality at one end, and Adjudication as Understanding (concrete judgment), grounded on a creative reading of Bergsonian and Gadamerian temporality at the other.The main differences between these forms of judgment is the qualitatively different types of fact they produce, made possible through the temporalities upon which they are contingent. This results in different constructions of the subject and event (facts which law gives meaning to) which may impact upon ascriptions of responsibility. In addition, it is with adjudication as understanding that a potentially transformative form of judgment is possible and in which the radical difference of the subject and event of law emerges.Temporality is thus capable of reframing old problems of jurisprudence as well as articulating new ones. It argues that factual construction, in particular subjectivity is, in part, predicated upon time, and that temporality, as unproblematised, may conceal an exercise of judicial power. It also highlights the general marginalisation of temporality in (legal) modernity and reveals the ‘temporal trap’ of legal subjectivity in which futures are bound and pasts are arbitrarily selected.

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Keyword(s)

Adjudication; Bergson; Gadamer; Judgment; Temporality

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