Rafał Mańko (University of Wrocław) has posted From Ideology to the Common Good: Reconsidering the Critical Theory of Adjudication (Krytyka Prawa) on SSRN. Here is the abstract:
This paper reconsiders the critical (agonistic) theory of adjudication by revising its normative thesis concerning ideology as a source of judicial guidance in cases of genuine indeterminacy. It retains the theory’s three descriptive claims—legal indeterminacy, agonism, and the factual role of ideology in adjudication—but introduces a key modification: replacing ideology with the common good as the normative criterion that should guide judges when they confront genuine indeterminacy. However, ideology is not removed from the picture altogether. Rather, understood in line with definitions proposed by political scientists, it becomes a critical tool for evaluating specific judicial decisions, with the aim of identifying instances when ideological preferences stood in the way of recognising the common good. Incorporating the concept of the common good enriches the agonistic theory by supplementing its critical stance with a constructive, substantive dimension. In this way, the (post-)critical theory of adjudication is modified, thereby addressing the objections of subjectivisation and “emancipation” of judges as raised by its critics.
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Lawrence Solum