Before Whom, and When: The Synchronic Accountability of the Claim to Provenance

Courts frequently present their decisions not as innovation but as recognition of what a normative term already required. This claim to provenance undertakes determinate commitments and generates an inferential exposure whose mechanism is familiar from Robert Brandom and has already been transposed into legal theory. Brandom also formulated the problem of who controls the judicial reconstruction of the past, and answered that the present judge's authority is administered by future judges. This paper accepts that solution but argues that it is structurally incomplete as a theory of adjudication: even when it works perfectly, future correction reaches a party other than the one who bore the effects of the present decision; and its sufficiency diminishes where the future administrator is institutionally weakened. The basic reason for synchronic accountability lies in that difference, and grows stronger the less available the diachronic administration of the claim. Drawing on Fuller's characterisation of adjudication as participation by proofs and reasoned arguments, two requirements are proposed: a synchronic one — the claim should not be stabilised while an apt objection, determined by the commitments the claim itself undertook, remains unanswered —, which partly overlaps the duty to give reasons but has its own origin and extension; and a diachronic one — the subsequent abandonment of those commitments should be recorded as a departure —, which is not reducible to that duty. The paper does not seek to determine the correct interpretation, nor to render evaluative terms semantically refutable: it holds only that the irrefutability of the term does not eliminate the controllability of the institutional claim that invokes it.

DIETRICH, Pablo. Before Whom, and When: The Synchronic Accountability of the Claim to Provenance. SSRN, 2026. DOI: 10.2139/ssrn.7663259.