Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0006
- Subject:
- Law, Legal History
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and ...
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This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.Less
This chapter begins with a discussion of the sources of criminal law, covering the growth of criminal treatises, legislative and proto-legislative potential influential sources, and the style and substance of criminal law judgments. It then discusses the reform of criminal law.
Francesco Parisi and Vincy Fon
- Published in print:
- 2009
- Published Online:
- January 2009
- ISBN:
- 9780195374155
- eISBN:
- 9780199871834
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374155.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional ...
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This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.Less
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.
Jan Klabbers
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199543427
- eISBN:
- 9780191720475
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199543427.003.0003
- Subject:
- Law, Public International Law
This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to ...
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This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.Less
This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.001.0001
- Subject:
- Law, Public International Law
This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. ...
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This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. A comprehensive study of this problem has been lacking so far in international legal doctrine. Peremptory norms, although often criticised and even more often approached with sceptical nihilism, nevertheless attract growing doctrinal and practical attention, and have increasing importance in determining the permissible limits on the action of State and non-State actors in different areas. In view of this overriding impact on what might otherwise be instances of the law-making process, peremptory norms concern a constitutional aspect of international law. Peremptory norms are non-derogable norms, and the concept of derogation is among the key concepts analysed here. Derogation from peremptory norms can be attempted in a wide variety of situations, but if peremptory norms are to operate as norms and not merely as aspirations, they must generate consequences that are also peremptory. This effects-oriented character of peremptory norms is examined in a variety of fields. The hierarchical superiority of peremptory norms is not limited to the sphere of primary legal relations, but becomes most crucially relevant after a specific peremptory norm is breached. A norm's peremptory character is relevant not only for its substance but also for its consequences; peremptoriness consists primarily in the capacity to impact through its effects upon conflicting acts, situations and agreements.Less
This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. A comprehensive study of this problem has been lacking so far in international legal doctrine. Peremptory norms, although often criticised and even more often approached with sceptical nihilism, nevertheless attract growing doctrinal and practical attention, and have increasing importance in determining the permissible limits on the action of State and non-State actors in different areas. In view of this overriding impact on what might otherwise be instances of the law-making process, peremptory norms concern a constitutional aspect of international law. Peremptory norms are non-derogable norms, and the concept of derogation is among the key concepts analysed here. Derogation from peremptory norms can be attempted in a wide variety of situations, but if peremptory norms are to operate as norms and not merely as aspirations, they must generate consequences that are also peremptory. This effects-oriented character of peremptory norms is examined in a variety of fields. The hierarchical superiority of peremptory norms is not limited to the sphere of primary legal relations, but becomes most crucially relevant after a specific peremptory norm is breached. A norm's peremptory character is relevant not only for its substance but also for its consequences; peremptoriness consists primarily in the capacity to impact through its effects upon conflicting acts, situations and agreements.
Fabián O Raimondo
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0006
- Subject:
- Law, Public International Law
This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements ...
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This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.Less
This chapter examines the sources of peremptory norms, and examines which of them can be proper sources of jus cogens. It considers the modification of peremptory norms in terms of the requirements of Article 53 of the Vienna Convention on the Law of Treaties.
Chester Brown
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199206506
- eISBN:
- 9780191709708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206506.003.0003
- Subject:
- Law, Public International Law
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ...
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This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.Less
This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.
Joseph Powderly
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Larissa van den Herik
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad ...
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This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.Less
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.
Chester Brown
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0021
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This chapter deals with the applicable procedure in investment treaty arbitration. It notes that although investment treaty arbitration has a public law character, the applicable procedure typically ...
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This chapter deals with the applicable procedure in investment treaty arbitration. It notes that although investment treaty arbitration has a public law character, the applicable procedure typically follows the model of international commercial arbitration. With this in mind, the chapter considers whether some features of the procedure that is applied in domestic public law litigation — in particular, in judicial review proceedings before domestic courts — might be relevant and applicable to investment treaty arbitration, so that it might better reflect its public law function. It then reviews the applicable procedure in such proceedings in the United Kingdom, Australia, the United States, Germany, and France, and suggests that the following aspects of procedure are worthy of consideration by investment treaty tribunals: the evidence-gathering powers of domestic tribunals, aspects of the inquisitorial process, the regime for access to the courts for non-disputing parties, and the diverse range of available remedies.Less
This chapter deals with the applicable procedure in investment treaty arbitration. It notes that although investment treaty arbitration has a public law character, the applicable procedure typically follows the model of international commercial arbitration. With this in mind, the chapter considers whether some features of the procedure that is applied in domestic public law litigation — in particular, in judicial review proceedings before domestic courts — might be relevant and applicable to investment treaty arbitration, so that it might better reflect its public law function. It then reviews the applicable procedure in such proceedings in the United Kingdom, Australia, the United States, Germany, and France, and suggests that the following aspects of procedure are worthy of consideration by investment treaty tribunals: the evidence-gathering powers of domestic tribunals, aspects of the inquisitorial process, the regime for access to the courts for non-disputing parties, and the diverse range of available remedies.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.001.0001
- Subject:
- Law, Public International Law
There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, ...
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There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.Less
There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.
Shane Darcy and Joseph Powderly (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these ...
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As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.Less
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.
Shane Darcy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. ...
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This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.Less
This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0009
- Subject:
- Law, Philosophy of Law
This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this ...
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This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no ‘moral sources’, while legal sources are central to the law. It argues that legal interpretation is primarily the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. The chapter shows how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality.Less
This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no ‘moral sources’, while legal sources are central to the law. It argues that legal interpretation is primarily the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. The chapter shows how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0011
- Subject:
- Law, Public International Law
This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really ...
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This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.Less
This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.
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/9780199657674.003.0001
- Subject:
- Law, Public International Law, Philosophy of Law
This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force ...
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This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force behind the word as foundations in the search of beginning and meaning. None satisfied him and he ultimately found the solution in the deed. The chapter reads discussions in the International Law Commission surrounding the Vienna Convention on the Law of Treaties and its rules of interpretation through the lens of Faust’s quarrels. It introduces the challenge for both sources doctrine and received ideas about the nature of interpretation that comes with semantic pragmatism and the proposition that it is the deed that generates meaning and legal normativity. The chapters draws attention to the legitimacy implications of this challenge in the specific constellation of the international legal order and sets out the book’s agenda.Less
This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force behind the word as foundations in the search of beginning and meaning. None satisfied him and he ultimately found the solution in the deed. The chapter reads discussions in the International Law Commission surrounding the Vienna Convention on the Law of Treaties and its rules of interpretation through the lens of Faust’s quarrels. It introduces the challenge for both sources doctrine and received ideas about the nature of interpretation that comes with semantic pragmatism and the proposition that it is the deed that generates meaning and legal normativity. The chapters draws attention to the legitimacy implications of this challenge in the specific constellation of the international legal order and sets out the book’s agenda.
Caroline Fournet
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0011
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
John B. Nann and Morris L. Cohen
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780300118537
- eISBN:
- 9780300235685
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300118537.003.0003
- Subject:
- Law, Legal History
This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and ...
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This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.Less
This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.
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 ...
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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.
Andrea Dolcetti and Giovanni Battista Ratti
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0014
- Subject:
- Law, Philosophy of Law
This chapter tests the hypothesis that the presence of specific kinds of disagreements in most contemporary legal systems — those that we call interpretative disagreements — is a characteristic ...
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This chapter tests the hypothesis that the presence of specific kinds of disagreements in most contemporary legal systems — those that we call interpretative disagreements — is a characteristic feature of law. It considers whether disagreements about the interpretation of sources of law would not simply be compatible with, but indeed presuppose, an agreement on the identification of those sources. To verify the hypothesis it discusses, in light of a refined taxonomy of legal disagreements, how the ambiguities in Dworkin's reconstruction of legal disagreements may affect his critique of Hart's legal positivism. It also investigates the relevance of the notion of legal disagreements for general jurisprudence. On the basis of the linguistic character of legal norms, the chapter maintains that interpretative (meaning-content) disagreements and institutional (source-based) agreement are related in such a way that it makes sense to talk of a ‘dual nature’ of law.Less
This chapter tests the hypothesis that the presence of specific kinds of disagreements in most contemporary legal systems — those that we call interpretative disagreements — is a characteristic feature of law. It considers whether disagreements about the interpretation of sources of law would not simply be compatible with, but indeed presuppose, an agreement on the identification of those sources. To verify the hypothesis it discusses, in light of a refined taxonomy of legal disagreements, how the ambiguities in Dworkin's reconstruction of legal disagreements may affect his critique of Hart's legal positivism. It also investigates the relevance of the notion of legal disagreements for general jurisprudence. On the basis of the linguistic character of legal norms, the chapter maintains that interpretative (meaning-content) disagreements and institutional (source-based) agreement are related in such a way that it makes sense to talk of a ‘dual nature’ of law.
