Ingo Venzke
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199657674
- eISBN:
- 9780191753114
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199657674.003.0002
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm ...
More
This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm text and illustrates how semantic change challenges the normative construction according to which subjects can only be bound with their consent. Once they make a commitment, the content of such a commitment is no longer in their hands alone. The chapter identifies shortcomings of theoretical approaches that have shifted their attention towards lawmaking in communicative practices and connects to developments in linguistic theory as well as sociology to introduce a concept of practice that supersedes old divides. The chapter cuts to the core of semantic struggles in law by discussing the exercise of power and authority in legal interpretation and closes by introducing the main actors in international legal discourse.Less
This chapter develops theoretical perspectives on how the practice of interpretation makes international law. It first rejects orthodox legal positivism’s assumption that law can be found in the norm text and illustrates how semantic change challenges the normative construction according to which subjects can only be bound with their consent. Once they make a commitment, the content of such a commitment is no longer in their hands alone. The chapter identifies shortcomings of theoretical approaches that have shifted their attention towards lawmaking in communicative practices and connects to developments in linguistic theory as well as sociology to introduce a concept of practice that supersedes old divides. The chapter cuts to the core of semantic struggles in law by discussing the exercise of power and authority in legal interpretation and closes by introducing the main actors in international legal discourse.
Ingo Venzke
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199657674
- eISBN:
- 9780191753114
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199657674.001.0001
- Subject:
- Law, Public International Law, Philosophy of Law
The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive ...
More
The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.Less
The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.
Nicole De Silva
- Published in print:
- 2018
- Published Online:
- February 2019
- ISBN:
- 9780198798200
- eISBN:
- 9780191858642
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198798200.003.0007
- Subject:
- Law, Public International Law
This chapter examines international courts’ premises as objects of international law through the case of the African Court on Human and Peoples’ Rights. When creating an international court, states ...
More
This chapter examines international courts’ premises as objects of international law through the case of the African Court on Human and Peoples’ Rights. When creating an international court, states become legally obligated to supply its physical premises—a functional and symbolic resource that underpins the court’s legal authority and influence. Drawing on archival evidence, this chapter analyses the African Court’s significant challenges in securing this important resource from political actors within the African Union and Tanzania, the court’s host state. It shows that, with international law and courts, there can be a considerable gap between states’ commitment and compliance, and between legal ambition and political reality. This gap, however, can mobilize court officials to assert their needs for resources and, more generally, the significance of their mandate. Examining international courts’ premises, therefore, can elucidate the tensions between law and politics embedded in international justice specifically and international law more broadly.Less
This chapter examines international courts’ premises as objects of international law through the case of the African Court on Human and Peoples’ Rights. When creating an international court, states become legally obligated to supply its physical premises—a functional and symbolic resource that underpins the court’s legal authority and influence. Drawing on archival evidence, this chapter analyses the African Court’s significant challenges in securing this important resource from political actors within the African Union and Tanzania, the court’s host state. It shows that, with international law and courts, there can be a considerable gap between states’ commitment and compliance, and between legal ambition and political reality. This gap, however, can mobilize court officials to assert their needs for resources and, more generally, the significance of their mandate. Examining international courts’ premises, therefore, can elucidate the tensions between law and politics embedded in international justice specifically and international law more broadly.
