Preface
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This book is an attempt to provide a sustained and convincing response to a
very simple set of concerns: What do/can/should judges do? My focus is upon
the interaction of law, politics, and adjudication as it occurs in the largely
common law jurisdictions of industrialized nations. I attempt to move back
and forth between jurisprudential debates of high theory and the daily
practices of appellate judges. The aim is to develop a cogent account of
adjudication as an engaged game of rhetorical justification that is both
descriptively accurate and prescriptively realizable. As such, I provide an
adequate description of what it is that judges do and what it is that jurists
(and judges) claim that they are doing. Also, I o√er a viable prescription of
what it is that judges can and should do in fulfilling their professional roles
and responsibilities. Throughout the book, my emphasis is on developing a
better and more sophisticated elaboration of the claim that ‘‘law is politics.’’
My account is meant to be both critical and constructive in equal measure.
The motivation behind this book is my felt need to take seriously the
institutional and political implications of adopting a nonfoundational cri-
tique of law and adjudication. In particular, I grapple with the persistent
charge that it is not possible to adopt such an ungrounded jurisprudential
approach (or what is unhelpfully called a ‘‘postmodern’’ approach) and, at
the same time, remain committed to a progressive kind of politics. As such,
this project is a jurisprudential exercise in good faith—I try to follow these
nonfoundational ideas to wherever they might lead me. My pressing con-
cern has been to ensure that my critique did not turn into a pseudo or faux
politics that was long on posturing and short on bite: a species of middle-
class theorizing that paid only lip service to the progressive commitment to
overcoming oppression and alleviating su√ering. Whether I have succeeded
in meeting that challenge is for the reader to judge, but I believe that I have
provided a convincing response to those who view a nonfoundational ac-
count as reactionary and quietistic. While my account will not satisfy those
who crave certainty and dogma in political struggle, I do insist that the turn
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