The Study On The Uncertainty Of Adjudication In Duncan Kennedy’s Legal Thought

After the second world war, judge and the model of judgement have become the important object of study in jurisprudential circle. The traditional Jurisprudence of the Liberalism in the USA has an opinion that the judge had determinacy and can be forecasted. Professor Duncan Kennedy who is famous for anti-tradition uses the way of the left and postmodernist projects to criticize the determinacy of the judgement deeply. He points out the uncertainty and political nature of the judgement. My paper decides to study this problem via the following four sections:Part one, as the basement of this article, the point of this part is to explain the background and theory sources of Duncan Kennedy’s thought roundly and systematically. As the pope of the The Critical Legal Studies Movement(for short ”CLS”), Duncan Kennedy’s thought has a substantial connection with the CLS. Because of this, we should introduce the emerge, the background, the development and the study of the international and domestic academics. All of this is to make a steppingstone for the study of Duncan Kennedy. On this basement, introducing the academic background and his effective thoughts.Part two, is the main demonstration of the article, including the reason of the uncertainty of the judgement. The first, there are two basic Proposition in Duncan Kennedy’s thought: the uncertainty and political nature of the law. Via the sophisticated demonstration, pointing out the conflict, ambiguous point and ideology in the rule. The second, pointing out in the process of legal reasoning, the imperfection of the traditionally deductive reasoning, which need the supplement of Policy reasoning. On the analysis of policy, indicate the related relationship of policy and ideology in legal reasoning. Through the above mentioned analysis, exploding the reason of the uncertainty and political nature in judgement, which is the uncertainty and political nature of the legal rule and legal reasoning.Part three, the point is to expound the path and result in the uncertainty of the judgement which proved by Duncan Kennedy. On this part, Kennedy recommends the most important role in judgement, the judge. He uses the psychology and phenomenology to deeply analyze the process of judicial reasoning and judgement, pointing out non-neutrality and ideological bias of the judge. The judge denies the bad faith of his behavior to remain legitimation which can get modest results, empowerment and rightness.Part four, the purpose of this part is to appraise and rethinking the thought of Duncan Kennedy about the uncertainty of judgement. Even though Duncan Kennedy points out the incompleteness of the classification on legislation and judiciary, the impossibility of model neutrality in judiciary, the implied Political nature in judgement and else special proposition. But there are some defect in his theory such as the narrow-mindedness of the using area, the one-sided deconstruction of post-modernisme and so on. We should understand Duncan Kennedy’s thoughts reasoningly. Thinking about the Chinese context, we should study the way of the hypothetico-discriptive which is used by Kennedy to understand Chinese legal ideology, the relationship of judiciary, policy and the will of the people and other problems to remove the Chinese judicial reform and the construction of judicial authority.