Precedents: Lawmaking Through International Adjudication

2011 ◽  
Vol 12 (5) ◽  
pp. 1005-1032 ◽  
Author(s):  
Marc Jacob
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Progressive Development ◽  
Judicial Decisions ◽  
Judicial Lawmaking ◽  
International Adjudication ◽  
Restraining Force

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

scholarly journals Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 349-353
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Judicial Decision ◽  
International Court Of Justice ◽  
Judicial Decision Making ◽  
International Courts ◽  
Judicial Decisions ◽  
The Past ◽  
Court Of Justice ◽  
International Court ◽  
Empirical Social Science

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System

2009 ◽  
Vol 78 (1) ◽  
pp. 53-72 ◽  
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Legal System ◽  
State Responsibility ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Present Essay ◽  
Legal Literature ◽  
International Legal System ◽  
The Law

AbstractIn the international legal literature, it is commonplace to talk about the law of state responsibility as secondary rules of law. The terminology emphasises that in some way or another the law of state responsibility is different from other rules of the international legal system – what international legal scholars refer to as primary rules of law. The present essay inquires into the soundness of this language. As argued, the primary-secondary rules terminology builds on two assumptions. First, it assumes that the law of state responsibility can be described as separate from the ordinary (or primary) rules of international law. Secondly, it assumes that the two classes of rules can be described as pertaining to different stages of the judicial decision-making process. As shown in this essay, neither assumption can be defended as correct.

scholarly journals Tax avoidance in New Zealand: in search of principles

2021 ◽  
Author(s):  
◽  
Harriet Bush
Keyword(s):  
Income Tax ◽  
Legal Reasoning ◽  
Tax Avoidance ◽  
Case Law ◽  
Moral Principle ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Moral Principles ◽  
Inland Revenue

<p>This paper analyses the judicial application of New Zealand’s general anti-tax avoidance rule contained in s BG 1 of the Income Tax Act 2007 in the light of three 20th Century jurisprudential theories of legal reasoning. It focuses specifically on the role of moral principles in the process of judicial decision-making and explores whether existing case law on the avoidance provision can be seen as supporting the hypothesis that judges apply moral principles when reaching decisions. Following the test laid down for tax avoidance in the Supreme Court’s decision in Ben Nevis Ventures Ltd & Others v Commissioner of Inland Revenue, the paper concludes that judges have the ability, in some cases, to reach their decision about whether there has been tax avoidance by applying the moral principle that tax should apply uniformly to all cases that are economically similar.</p>

scholarly journals Tax avoidance in New Zealand: in search of principles

2021 ◽  
Author(s):  
◽  
Harriet Bush
Keyword(s):  
Income Tax ◽  
Legal Reasoning ◽  
Tax Avoidance ◽  
Case Law ◽  
Moral Principle ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Moral Principles ◽  
Inland Revenue

<p>This paper analyses the judicial application of New Zealand’s general anti-tax avoidance rule contained in s BG 1 of the Income Tax Act 2007 in the light of three 20th Century jurisprudential theories of legal reasoning. It focuses specifically on the role of moral principles in the process of judicial decision-making and explores whether existing case law on the avoidance provision can be seen as supporting the hypothesis that judges apply moral principles when reaching decisions. Following the test laid down for tax avoidance in the Supreme Court’s decision in Ben Nevis Ventures Ltd & Others v Commissioner of Inland Revenue, the paper concludes that judges have the ability, in some cases, to reach their decision about whether there has been tax avoidance by applying the moral principle that tax should apply uniformly to all cases that are economically similar.</p>

scholarly journals Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice

2018 ◽  
Vol 8 (9) ◽  
pp. 1215-1223
Author(s):  
Linda L. Berger ◽  
Bridget J. Crawford ◽  
Kathryn M. Stanchi
Keyword(s):  
Decision Making ◽  
International Law ◽  
Legal Reasoning ◽  
Gender Justice ◽  
Sociology Of Law ◽  
International Institute ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Global Projects ◽  
And Gender

This collection of essays is the product of the workshop Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice held at the International Institute for the Sociology of Law (Oñati, Spain) in May, 2017. The papers explain and explore the multiple global projects that attempt to rewrite judicial opinions by incorporating feminist legal reasoning or methods. Each essay grows out of the authors’ experiences working with projects based in a particular socio-political, geographical, historical and jurisprudential context: Canada, England, Australia, Ireland, New Zealand, Scotland, and a multi-jurisdictional international law project. Collectively, the essays bring new insights, methods and challenges to the study of the feminist project of equal justice across the boundaries of culture, race, nation and gender. Esta colección de artículos es producto del seminario Feminist Judgments: Comparative Socio-Legal Perspectives on Judicial Decision Making and Gender Justice, que tuvo lugar en el Instituto Internacional de Sociología Jurídica (Oñati, España), en mayo de 2017. Los artículos explican y exploran los múltiples proyectos globales que intentan reescribir opiniones judiciales incorporando razonamientos o métodos jurídicos feministas. Cada artículo proviene de las experiencias de las autoras en su trabajo con proyectos basados en un contexto sociopolítico, geográfico, histórico y jurisprudencial concreto: Canadá, Inglaterra, Australia, Irlanda, Nueva Zelanda, Escocia y un proyecto jurídico internacional multijurisdiccional. En conjunto, los artículos aportan nuevos enfoques, métodos y desafíos al estudio del proyecto feminista de justicia igualitaria, más allá de los límites de culturas, razas, países y géneros.

Human Dignity in the Jurisprudence of the European Court of Human Rights

2013 ◽  
Author(s):  
Jean-Paul Costa
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Human Dignity ◽  
Legal Reasoning ◽  
Central Element ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
European Court ◽  
Conceptual Link

The chapter first gives several examples of where ‘dignity’ (or ‘a person’s dignity’, or ‘human dignity’) has been a central element in the reasoning of the Court, or in the arguments advanced by judges in separate opinions. Based on this analysis, the principal question addressed is why the Court draws on ‘dignity’, a word neither explicitly nor, implicitly mentioned in the text of the Convention or the Protocols. What are the reasons for having—or not having—recourse to the concept of dignity in judicial decisions? Is there any objective reason for such choice? Or does it depend on the subjective preferences of the judges sitting on the bench? Is ‘dignity’ necessary for judicial decision-making in order to reach a specific conclusion in a case? Or does ‘dignity’ simply reinforce the legal reasoning of the Court, enabling the Court to give more weight to the arguments of one of the parties in the case? Finally, the chapter looks for a possible conceptual link between human dignity and human rights, insofar as this arises from the jurisprudence of the Strasbourg Court.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada

2007 ◽  
Vol 40 (1) ◽  
pp. 247-249
Author(s):  
Anna Esselment
Keyword(s):  
United States ◽  
Legal Reasoning ◽  
The United States ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Division Of Powers ◽  
Independent Variable ◽  
Judicial Doctrine ◽  
The One ◽  
Central Claim

Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada, Gerald Baier, Vancouver and Toronto: UBC Press, 2006, pp. 207.Is everything old new again? Gerald Baier's insightful book brings back into the mainstream a long neglected examination of federalism from the perspective of judicial review. His analysis of the courts' impact on the development of federalism involves a detailed study of division of powers jurisprudence in the United States, Australia, and Canada. In each of these countries, Baier argues, the decisions of the highest courts continue to affect the shape of federalism, but his central claim turns on how these decisions are made. For Baier, judicial doctrine plays a significant role in influencing the reasoning of the courts and must be considered an independent variable worthy of study in its own right. Many scholars have debated the significance of doctrine on judicial decision making. However, Baier takes issue with scholars who, on the one hand, have characterized doctrine as a tool of objectivity and certainty, and those, on the other hand, who view doctrine as entirely political in nature (27). For Baier, doctrine is neither of these but it is “distinctly legal in character” and it is this legal reasoning that shapes outcomes (27).

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

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