HEIDEGGER AND THE THEORY OF ADJUDICATION

According to Ronald Dworkin's influential model for constructing a the ory of adjudication, the theorist aims both for a descriptively adequa te and a normatively defensible account of adjudication. To be descrip tively adequate, the theory must make explicit the rule-governed proce dures that regulate and explain the process of judicial decisionmaking . Can the theory of adjudication carry out its descriptive project? Pr ofessor Leiter argues that it cannot, far reasons that Heidegger adduc ed in the context of a more general attack on the philosophical idea t hat human practices can be made theoretically explicit. To the contrar y, argues Heidegger; all such practices depend upon a range of noncogn itive ''coping'' skills that constitute a ''Background'' of intelligib ility against which the practice itself takes place. The Background, h owever cannot itself be made theoretically explicit. Locating this the me in the works of Heidegger, Pierre Bourdieu, and the analytic legal philosopher Gerald Postema, among others, Professor Leiter shows how t he general Heideggerian argument similarly frustrates the ambitions fo r a theory of adjudication. He concludes by showing how this argument lends support to the recent ''practical-wisdom'' theories of judicial decisionmaking, and why it may warrant a turn to what Professor Leiter calls a ''naturalized'' jurisprudence.