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Author: Letizia Lo Giacco
Publisher: Bloomsbury Publishing
ISBN: 1509948961
Category : Law
Languages : en
Pages : 227
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Book Description
This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.
Author: Letizia Lo Giacco
Publisher: Bloomsbury Publishing
ISBN: 1509948961
Category : Law
Languages : en
Pages : 227
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Book Description
This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.
Author: Shane Darcy
Publisher: Cambridge University Press
ISBN: 1107060699
Category : History
Languages : en
Pages : 395
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Book Description
This book provides expert analysis of the impact of international and national courts on the development of international law applying to armed conflicts.
Author: Gleider Hernandez
Publisher:
ISBN: 0199646635
Category : Law
Languages : en
Pages : 369
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Book Description
The International Court of Justice embodies a compromise between ideas of state sovereignty and pressures for a stronger 'international community'. This book elaborates on the Court's role in the international legal system, and argues that as a result of this tension, the Court's contribution to international law is subtle rather than progressive.
Author: Eveline T. Feteris
Publisher: Springer
ISBN: 9402411291
Category : Philosophy
Languages : en
Pages : 371
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Book Description
This book is an updated and revised edition of Fundamentals of Legal Argumentation published in 1999. It discusses new developments that have taken place in the past 15 years in research of legal argumentation, legal justification and legal interpretation, as well as the implications of these new developments for the theory of legal argumentation. Almost every chapter has been revised and updated, and the chapters include discussions of recent studies, major additions on topical issues, new perspectives, and new developments in several theoretical areas. Examples of these additions are discussions of recent developments in such areas as Habermas' theory, MacCormick's theory, Alexy's theory, Artificial Intelligence and law, and the pragma-dialectical theory of legal argumentation. Furthermore it provides an extensive and systematic overview of approaches and studies of legal argumentation in the context of legal justification in various legal systems and countries that have been important for the development of research of legal argumentation. The book contains a discussion of influential theories that conceive the law and legal justification as argumentative activity. From different disciplinary and theoretical angles it addresses such topics as the institutional characteristics of the law and the relation between general standards for moral discussions and legal standards such as the Rule of Law. It discusses patterns of legal justification in the context of different types of problems in the application of the law and it describes rules for rational legal discussions. The combination of the sound basis of the first edition and the discussions of new developments make this new edition an up-to-date and comprehensive survey of the various theoretical influences which have informed the study of legal argumentation. It discusses salient backgrounds to this field as well as major approaches and trends in the contemporary research. It surveys the relevant theoretical factors both from various continental law traditions and common law countries.
Author: Ole Spiermann
Publisher: Cambridge University Press
ISBN: 1139442686
Category : Law
Languages : en
Pages : 539
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Book Description
The International Court of Justice at The Hague is the principal judicial organ of the UN, and the successor of the Permanent Court of International Justice (1923–1946), which was the first real permanent court of justice at the international level. This 2005 book analyses the groundbreaking contribution of the Permanent Court to international law, both in terms of judicial technique and the development of legal principle. The book draws on archival material left by judges and other persons involved in the work of the Permanent Court, giving fascinating insights into many of its most important decisions and the individuals who made them (Huber, Anzilotti, Moore, Hammerskjöld and others). At the same time it examines international legal argument in the Permanent Court, basing its approach on a developed model of international legal argument that stresses the intimate relationships between international and national lawyers and between international and national law.
Author: Ian Johnstone
Publisher: Oxford University Press
ISBN: 0197588433
Category : Law
Languages : en
Pages : 377
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Book Description
"In a decentralized global system that lacks the formal trappings of domestic governance systems, most disputes between and among states and non- state actors never reach either a domestic or an international courtroom for some kind of authoritative resolution. This state of affairs continues, even with the creation of new international tribunals in recent decades. Despite, indeed because of, the relative scarcity of judicial settlement of disputes, international legal argumentation remains pervasive, but notably in a range of nonjudicial settings. States, corporations, nongovernmental organizations (NGOs), and even guerrilla groups make claims in international legal terms in political bodies like the United Nations' organs or domestic parliaments, private diplomatic discussions, and public statements in formal and informal settings. What purpose does such argumentation serve? What are its effects, intended and unintended? Who is engaging in the argumentation? Who is the audience? What, for that matter, counts as a legal argument and how is it different from other kinds of argument? These questions are not all new, but they have never been addressed systematically in one volume. Answering them is critical to a central goal for scholars and practitioners of international law and relations- to understand how international law actually operates in international affairs. This book probes these and other questions related to the place of international legal arguments from a multi- perspectival lens. It brings together a group of scholars and practitioners from around the world who have either written about or engaged in international legal argumentation outside of courtrooms. We draw on various theoretical traditions that address the phenomenon of argumentation in international affairs, either as an element of legal theory or of international relations theory. Yet our approach is largely inductive, looking at the actual practice of legal argumentation in a variety of settings and issue areas. From the cases, we seek to identify patterns and common themes in why, where, how, and to what effect the language of law is used outside of courts. This fills a significant gap in scholarship on international law and international relations by exploring the micro- process of communication using international law"--
Author: Martti Koskenniemi
Publisher: Routledge
ISBN: 1351548166
Category : Law
Languages : en
Pages : 575
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Book Description
A collection of essays on the various aspects of the legal sources of international law, including theories of the origin of international law, explanation of its binding force, normative hierarchies and the relation of international law and politics.
Author: Ryan Malphurs
Publisher: Routledge
ISBN: 1136182292
Category : Language Arts & Disciplines
Languages : en
Pages : 248
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Book Description
While legal scholars, psychologists, and political scientists commonly voice their skepticism over the influence oral arguments have on the Court’s voting pattern, this book offers a contrarian position focused on close scrutiny of the justices’ communication within oral arguments. Malphurs examines the rhetoric, discourse, and subsequent decision-making within the oral arguments for significant Supreme Court cases, visiting their potential power and danger and revealing the rich dynamic nature of the justices’ interactions among themselves and the advocates. In addition to offering advancements in scholars’ understanding of oral arguments, this study introduces Sensemaking as an alternative to rational decision-making in Supreme Court arguments, suggesting a new model of judicial decision-making to account for the communication within oral arguments that underscores a glaring irony surrounding the bulk of related research—the willingness of scholars to criticize oral arguments but their unwillingness to study this communication. With the growing accessibility of the Court’s oral arguments and the inevitable introduction of television cameras in the courtroom, this book offers new theoretical and methodological perspectives at a time when scholars across the fields of communication, law, psychology, and political science will direct even greater attention and scrutiny toward the Supreme Court.
Author: Jean d'Aspremont
Publisher: Cambridge University Press
ISBN: 1108421873
Category : Law
Languages : en
Pages : 179
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Book Description
Offers a new perspective on international law and international legal argumentation: to what event is international law a belief system?
Author: Gunnar Beck
Publisher: Bloomsbury Publishing
ISBN: 178225031X
Category : Law
Languages : en
Pages : 492
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Book Description
The Court of Justice of the European Union has often been characterised both as a motor of integration and a judicial law-maker. To what extent is this a fair description of the Court's jurisprudence over more than half a century? The book is divided into two parts. Part one develops a new heuristic theory of legal reasoning which argues that legal uncertainty is a pervasive and inescapable feature of primary legal material and judicial reasoning alike, which has its origin in a combination of linguistic vagueness, value pluralism and rule instability associated with precedent. Part two examines the jurisprudence of the Court of Justice of the EU against this theoretical framework. The author demonstrates that the ECJ's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher, especially constitutional courts, more in degree than in kind. It nevertheless leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of its discretion is best understood in terms of the constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors such as sensitivity to Member States' interests, political fashion and deference to the 'EU legislator'. In conclusion, the Court of Justice of the EU has used the flexibility inherent in its interpretative approach and the choice it usually enjoys in determining the relative weight and order of the interpretative criteria at its disposal, to resolve legal uncertainty in the EU primary legal materials in a broadly communautaire fashion subject, however, to i) regard to the political, constitutional and budgetary sensitivities of Member States, ii) depending on the constraints and extent of interpretative manoeuvre afforded by the degree of linguistic vagueness of the provisions in question, the relative status of and degree of potential conflict between the applicable norms, and the range and clarity of the interpretative topoi available to resolve first-order legal uncertainty, and, finally, iii) bearing in mind the largely unpredictable personal element in all adjudication. Only in exceptional cases which the Court perceives to go to the heart of the integration process and threaten its acquis communautaire, is the Court of Justice likely not to feel constrained by either the wording of the norms in issue or by the ordinary conventions of interpretative argumentation, and to adopt a strongly communautaire position, if need be in disregard of what the written laws says but subject to the proviso that the Court is assured of the express or tacit approval or acquiescence of national governments and courts.
