The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial (...) decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

Western democracies experience profound conflicts that induce concerns about polarization and social cohesion. Yet although conflicts are a core feature of democracies, the forms, functions, and dynamics of democratic conflicts have rarely been subject of political theory. This paper aims at furthering our understanding of democratic conflicts. It analyzes the theory of conflict in Mouffe's agonistic pluralism, confronts it with sociological conflict theory, and presents concrete points of departure for a more comprehensive theory of democratic conflicts. The paper, thus, contributes (...) to two lines of research: (1) Regarding agonistic theories, the paper shows that agonistic pluralism fails to provide a convincing theory of conflict since it underestimates the mechanisms and effects of conflict dynamics (e.g. intergroup cohesion, intragroup conflict, domination, and escalation) and fails to account for the variety of conflict interactions. Proponents of agonistic pluralism should therefore invest more into clarifying their core concept. (2) For a general account of democratic conflicts, the paper proposes to pursue interdisciplinary research on the cognitive concepts shaping conflict interactions, the linked practices of conflict regulation, and the processual dynamics of conflicts. (shrink)