A major contribution to the understanding of adjudication as a process of the adversary system is made by Lon Fuller. One of the subjects of Fuller’s analysis of Adjudication is the limits of applicability. Adjudication can be defined in the broadest sense as taking the role of the judge in a dispute between two parties as a form of social ordering (Allison, 1994, 369; Fuller, 1978, 353). A more formal definition states that adjudication is “a device which gives formal and institutional expression to the influence of reasoned argument in human affairs (Fuller, 1978, 366). Fuller provided an analysis of adjudication in terms of forms and limits, according to which adjudication can be characterized in various ways. The characterization might include such aspects as the mode of participation of the affected parties and the types of disputes. Other aspects that might provide distinct qualities for adjudication include the urgent demand for rationality and the fact that their party has no right to a particular outcome (Fuller, 1978, 370).
To describe disputes which are cannot be solved by adjudication, Fuller introduced the concept of polycentric disputes. Polycentric disputes are defined as “situations of interacting points of influence”, which “involve many affected parties and a somewhat fluid state of affairs” (Allison, 1994, 369). The fluidity of the affairs can be seen in that a change in a single factor leads to a series of factors in other factors. General examples of such disputes might include a situation such as the equal allocation of different objects between two parties, drawing boundaries in complicated terrain, allocating radio and television programs to the population, and others (Allison, 1994, 370). The inapplicability of adjudication to polycentric disputes can be explained through various aspects. First of all, the repercussions of judicial interventions influence the main principle of adjudication, i.e. participation through the presentation of proofs and reasoned arguments. The latter leads to that inadequate participation lead to inadequate acknowledgment by the adjudicator, which in turn might lead to the failure to determine suitable repercussions of a decision. Secondly, in polycentric disputes, the information provided to the adjudicator only by the affected parties might not be sufficient to determine the repercussions of a particular decision. Finally, the application of adjudication might involve the decision being modified, withdrawn, or ignored, which subsequently might lead to legal uncertainties, in which legal repercussions will be restricted only in subsequent decisions going into the court.
The problem with Fuller’s understanding of adjudication is in the argument that polycentric elements can be seen in almost every case present for adjudication. In that regard, the problem of polycentric disputes might turn into an analysis of whether a precedent was present including a similar situation, or whether the polycentric issues are of significance to a degree that would create such precedent. Following the latter, every case falling within the competence of adjudication can be interpreted in terms of polycentric, and thus, other forms of social order such as legislation, mediation, contract, and managerial or administrative direction can be taken. Another problem with the aforementioned can be seen in that even in cases when the polycentricity of a dispute is apparent, the recommended alternatives might not be “up to the task” (Allison, 1994, 373). In that regard, Fuller acknowledged that adjudication might be occasionally applied.
References
Allison, J. W. F. 1994. Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication The Cambridge Law Journal 53 (2): 367-383
Fuller, Lon L. 1978. The Forms and Limits of Adjudication. Harvard Law Review 92:353-409.