Screen LibraryJudicial decisions in international law argumentation : between entrapment and creativity /
"How do the decisions of courts, when adjudicating statutory rules, contribute to the transformation of international law? This monograph explores this question, looking specifically at questions of international criminal law. It shows how courts take both a creative and constraining approach,...
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| Main Authors: | |
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| Published: |
Hart Publishing,
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| Publisher Address: | Oxford, UK : |
| Publication Dates: | 2022. |
| Literature type: | Book |
| Language: | English |
| Series: |
Studies in international law
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| Subjects: | |
| Summary: |
"How do the decisions of courts, when adjudicating statutory rules, contribute to the transformation of international law? This monograph explores this question, looking specifically at questions of international criminal law. It shows how courts take both a creative and constraining approach, allowing themselves to be guided by precedent but departing from it by argumentation if required. This is not an insignificant finding: it essentially allows for the rules of international criminal law to be rewritten but, more fundamentally, their ideological underpinning to be revisited. The author tracks how courts have decided cases in four key fields: protected groups in the definition of genocide; armed conflict in the definition of war crimes and serious violations of the laws and customs of war; command responsibility; the question of the 'unlawful combatant. Cases are drawn from courts including the International Military Tribunal in Nuremberg (IMT), the ICTY, the ICTR, and the ICC. This innovative work offers a new way of considering the role of the courts in transforming international law."-- "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"-- |
| Carrier Form: | xi, 214 pages : tables ; 24 cm. |
| Bibliography: | Includes bibliographical references (pages [193]-205) and index. |
| ISBN: |
9781509948949 1509948945 |
| Index Number: | KZ7230 |
| CLC: | D997.9 |
| Call Number: | D997.9/L795 |
| Contents: |
Courts and the argumentation of international law -- Rethinking judicial decisions beyond formal architectures -- The entrapment of judicial decisions -- Rewriting the meaning of international law -- Rethinking the judicialisation era. |