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This chapter discusses a wide variety of judicial interpretation techniques that state courts apply to state constitutions. Many of these techniques arise from the unique characteristics of state constitutions, including their origin, function, form, and quality, all of which are different from the federal Constitution. The chapter analyzes many of these differing approaches, including the question whether a state constitutional provision is self-executing; possible negative implications arising from grants of authority to the state legislature; interpretation based on the “voice of the people,” arising from the fact that state constitutional provisions are ratified by the electorate; the much wider availability of state constitutional history materials, some of it quite recent; and the possibility of a different view of the doctrine of precedent concerning judicial interpretations of state constitutions. The chapter discusses canons, maxims, and other approaches to state constitutional interpretation, such as contemporaneous construction.

The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.

By looking at the decisions of the United States Supreme Court, this chapter argues that what characterises American judicial discourse is precisely the fact it integrates its formalist and its policy-oriented discourses in a single discursive space: the judicial opinion. This characteristic American discursive integration is illustrated by analysing two particularly clear and recurrent series of examples: Supreme Court decisions that establish and apply multi-pronged judicial tests, and those that engage in ‘plain meaning’ judicial debates. This chapter examines the discursive mechanisms by which American judicial argument integrates or fuses its more formalist and its more policy-oriented discourses in the single space of the judicial opinion, and presents the significant argumentative tensions and distrust that are produced by this somewhat forced discursive coexistence. U.S. Supreme Court opinions almost never use either the term ‘formalism’ or the term ‘policy’ except to denounce them as inappropriate modes of judicial interpretation. American judicial discourse therefore walks a narrow argumentative tightrope: it must simultaneously promote and critique the two modes of discourse that it deploys side-by-side in its judicial opinions.

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.

This introductory chapter sets the foundations for the ensuing discussion of the role of judicial creativity in the development of core aspects of international criminal law as evidenced in the jurisprudence of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. It is clear that at the time of the creation of the Tribunals in the early 1990s international criminal law was substantively and procedurally rudimentary. However, some fifteen years later and as they move towards the completion of their mandates, it is an appropriate time to examine their jurisprudential legacy. This undoubtedly substantial legacy is owed in no small measure to the creative enterprises of their respective benches. The chapter outlines the various broad areas in which judicial creativity is especially evident and provides an overview of the subsequent chapters in the collection.

While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.

This chapter focuses on the influence of ‘judicial activism’ on the evolution of the crime of genocide. In stark contrast to the development of the definitional boundaries of crimes against humanity, the definition of genocide has not altered significantly since its formulation in the Genocide Convention of 1948. There have however, been a number of notable attempts at definitional expansion, starting with the findings of the District Court of Jerusalem (later supported by the Supreme Court of Israel) in the Eichmann case to the effect that the application of the doctrine of universal jurisdiction to genocide was implied under Article VI of the Convention. The chapter goes on to consider two more contemporary, if ultimately unsuccessful attempts in the Akayesu and Krstić cases. This examination highlights the dangers inherent in reliance on travaux préparatoires as a supplementary means of interpretation.

This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.

This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those produced by Roscoe Pound, John Dawson, and Duncan Kennedy — share a deeply pragmatic, realist (or proto-realist or post-realist, as the case may be) distrust of the syllogistic and apparently formalist style of the French civil judicial decision. All three analyses assume that something must be going on behind the facade of the French judicial decision, and that what is going on turns out to be judicial lawmaking. This chapter argues, however, that French judicial argument is bifurcated into two distinct spheres. In addition to the syllogistic argumentative sphere of the official French judicial decision, a vibrant — though well hidden — discursive sphere exists within the French civil judicial system. In this sheltered argumentative space, French magistrates argue not so much in terms of textual deduction, but rather in terms of the advantages and disadvantages of adopting one judicial interpretation over another.

This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the evolution of this process from the groundbreaking conceptual definition created in the Akayesu judgment, through the introduction of more mechanical elements of penetration and lack of consent in the Furundžija and Kunarac cases, up to the most recent authoritative statement of the Appeals Chamber in Gacumbitsi upholding the inclusion of non-consent as an element of the crime of rape. The chapter analyses the appropriateness of consent as an element of the crime of rape when committed as an act of genocide, a crime against humanity or a war crime, as well as the judicial and interpretational factors which gave rise to its inclusion.

This chapter focuses on the choice between two alternative means of effecting constitutional change: formal amendment and common-law judicial interpretation. A standard view in American constitutional theory is that amendments are presumptively harmful, because the limits of reason that afflict their enactors guarantee bad and unintended results. The chapter rejects this view and examines the epistemic costs and benefits of common-law constitutionalism administered by judges, on the one hand, and constitutional amendment, on the other, as alternative means for updating the Constitution in the face of changing circumstances. The claim that amendments are systematically futile, whether or not desirable, is also considered.

This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.

This chapter describes the European Court of Justice (ECJ), the highest court in the judicial system of the European Union. On the one hand, the ECJ generates official judicial decisions that consist of relatively short, deductive and magisterial judgments that are highly reminiscent of their French counterparts. On the other hand, the ECJ's judicial magistrates — and in particular its Advocates General — also routinely deploy a purposive or ‘teleological’ form of interpretation that stresses the more socially oriented goals of judicial interpretation. In short, the ECJ demonstrates a bifurcated form of judicial discourse that reproduces in large measure the French judicial system's own discursive bifurcation. What characterises and distinguishes ECJ argumentation is the public bifurcation of the Court's discourse. The ECJ publishes multiple judicial and quasi-judicial documents, including the official decision, the Opinion of the Advocate General, and (at least until recently) the Report of the Reporting Judge. This publication practice profoundly affects the discourses deployed by the ECJ and its interlocutors, leading to a particular and distinctive form of embattled judicial reasoning and argumentation.

This chapter discusses the clash between originalism and living constitutionalism. It considers variants of originalism, with particular emphasis on unsolved problems and continuing disagreement. It suggests that originalism has limited capacity to stem a constant flow of contemporary values into the judicial decision-making process, while a living Constitution is effectively irresistible. It also examines judicial interpretation of the Constitution and the dynamics of constitutional adjudication, along with the views of many originalists regarding the authoritativeness of specific original intentions or meanings (or expected applications) that attended general constitutional language. The chapter concludes with the argument that living constitutionalism is inevitable, at least once a far-ranging judicial review is in place.

This chapter examines a range of approaches to statutory interpretation. In particular, it explores how Congress actually functions, how Congress signals its meaning, what Congress expects of those interpreting its laws, and how courts in their interpretative role become participants in the legislative process. After discussing how Congress works and the lawmaking process as it has evolved, the chapter explains how legislators who comprise Congress signal their legislative meaning to agencies—the first interpreters of statutes—and how agencies regard Congress's work product in interpreting and executing the law. It then describes two approaches to the judicial interpretation of statutes, purposivism and textualism, and argues that a purely textualist approach is inadequate when interpreting ambiguous laws. Finally, it considers practical ways in which Congress may better signal its meaning and how courts may better inform Congress of problems they perceive in the statutes they review.

This chapter highlights the evolution of the ad hoc Tribunals' approach to the specificity of indictments. This is an issue at the very heart of the fairness of international criminal justice and reveals important aspects of the ad hoc Tribunals' commitment to issues pertaining to the fundamental rights of the accused to the presumption of innocence, fair trial, and due process. It is evident from the early jurisprudence of the Yugoslavia Tribunal that significant latitude was afforded to the Prosecutor in designating both the nature of the charges against accused and the factual parameters upon which the charges were based. The chapter highlights the shift away from non-specific indictments towards a more comprehensive indictments regime in which the rights of the accused were more robustly taken into consideration. In so doing, it is clear that the bench were acutely aware of the clear standards established by international human rights law.

This chapter discusses the role of the judiciary in the application of law. It discusses different approaches to statutory interpretation in the United States and Britain. It also describes the two constitutional factors which may have influenced arguments about the judicial role and judicial interpretation: first, the formal relationship between legislature and judiciary may be significantly different political systems; second, there may be structural differences in the modes of operation of legislatures.

The absolute legislative supremacy of the UK Parliament has—by law made by Parliament itself—been modified in practice by several factors, including EU membership, human rights legislation, and statutory devolution. Many difficult problems remain without complete resolution. The effectiveness of parliamentary scrutiny of EU legislation, and a solution to the West Lothian question are the most significant. Much of US constitutional law involving Congressional authority has evolved from judicial interpretations of Article I (particularly the Commerce Clause); the 10th Amendment—powers reserved to the States or to the people; the 11th Amendment—Sovereign immunity of the States; the 12th Amendment—election of President and Vice President; and the 14th Amendment—Congressional enforcement of guarantees of citizens' rights of due process and equal protection of the law.