Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity

This book explores how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. It demonstrates how the growing number of judicial decisions has normalised courts resorting to them in legal justification and enabled some argumentative practices to become constitutive of international law. It critically reassesses the implications of an iterative use of judicial decisions and 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.

Format: Paperback / softback
Length: 232 pages
Publication date: 18 April 2024
Publisher: Bloomsbury Publishing PLC

This book delves into the profound impact of the multiplication of judicial decisions on international law on the justification of legal findings in international law adjudication. International law practitioners regularly rely on judicial decisions to support their arguments, and courts interpreting international law are not exempt from this practice. However, judicial decisions go beyond persuasion; they wield a significant influence on the exercise of interpretive discretion by courts. Instead of following the traditional path of tracing the sources of international law, this book ventures into the less explored terrain of legal argumentation. By examining international criminal law as a case study, it demonstrates how the increasing number of judicial decisions has normalized the courts' reliance on them for legal justification. Moreover, it enables certain argumentative practices to become integral to the formation, shaping, and reshaping of international law through judicial decisions. In undertaking this critical examination, the book reassesses the implications of an iterative use of judicial decisions and evaluates the profound influence of the 'judicialization turn' on the ways in which the meaning of international law is established, developed, and transformed through reference to judicial decisions.

Introduction:
The proliferation of judicial decisions on international law has had a profound impact on the justification of legal findings in international law adjudication. International law practitioners frequently cite judicial decisions to support their arguments, and courts interpreting international law are not exempt from this practice. However, judicial decisions go beyond persuasion; they wield a significant influence on the exercise of interpretive discretion by courts. Instead of following the traditional path of tracing the sources of international law, this book ventures into the less explored terrain of legal argumentation. By examining international criminal law as a case study, it demonstrates how the increasing number of judicial decisions has normalized the courts' reliance on them for legal justification. Moreover, it enables certain argumentative practices to become integral to the formation, shaping, and reshaping of international law through judicial decisions. In undertaking this critical examination, the book reassesses the implications of an iterative use of judicial decisions and evaluates the profound influence of the 'judicialization turn' on the ways in which the meaning of international law is established, developed, and transformed through reference to judicial decisions.

Normalization of Judicial Decisions in Legal Justification:
The growing number of judicial decisions on international law has facilitated the normalization of courts resorting to them for legal justification. Courts have increasingly relied on judicial decisions to support their interpretations of international law, as they provide a persuasive authority and a framework for legal reasoning. This reliance on judicial decisions has led to the development of a body of jurisprudence that shapes the interpretation and application of international law. Judicial decisions have also become a source of guidance for other courts, as they provide a precedent for legal reasoning and decision-making.

Influence of Judicial Decisions on Argumentative Practices:
In addition to their influence on legal justification, judicial decisions have also had a significant impact on argumentative practices in international law. The increasing number of judicial decisions has enabled courts to adopt a more argumentative approach to legal reasoning, as they are able to draw on a broader range of legal arguments and precedents. This argumentative approach has led to the development of new legal theories and doctrines that have shaped the interpretation and application of international law. Judicial decisions have also facilitated the emergence of certain argumentative practices as constitutive of international law. For example, the use of judicial decisions to interpret treaty provisions has become a common practice in international law, as courts rely on judicial decisions to interpret the meaning and scope of treaty provisions.

Revisiting the Implications of an Iterative Use of Judicial Decisions:
The iterative use of judicial decisions has raised several important implications that warrant careful consideration. Firstly, it has led to the development of a body of jurisprudence that is increasingly complex and difficult to navigate. The growing number of judicial decisions has created a vast repository of legal authority, which can be challenging for practitioners and scholars to access and interpret. This complexity can lead to legal uncertainty and confusion, as courts may interpret international law in different ways, leading to different legal outcomes.

Secondly, the iterative use of judicial decisions has raised concerns about the potential for judicial activism and the erosion of the role of legislatures in the formation of international law. As courts rely on judicial decisions to interpret international law, they may be tempted to expand the scope of their interpretive discretion and create new legal doctrines or rules. This can lead to the bypassing of legislatures and the undermining of the democratic process of law-making.

Thirdly, the iterative use of judicial decisions has raised questions about the role of international organizations and the United Nations in the interpretation and application of international law. As judicial decisions become increasingly important in shaping the interpretation and application of international law, there is a risk that international organizations and the United Nations may be bypassed or marginalized in the legal process. This can lead to a lack of accountability and transparency in the legal process, as international organizations and the United Nations may not have a voice in the interpretation and application of international law.

Conclusion:
In conclusion, the multiplication of judicial decisions on international law has had a profound impact on the justification of legal findings in international law adjudication. Judicial decisions have facilitated the normalization of courts resorting to them for legal justification, enabled the development of new argumentative practices as constitutive of international law, and raised important implications for the interpretation and application of international law. It is essential to carefully consider these implications and to ensure that the legal process is transparent, accountable, and democratic. By engaging in a critical examination of the influence of judicial decisions on international law, we can strive to ensure that the meaning of international law is formed, shaped, and reshaped in a manner that is consistent with the principles of international law and the interests of all states.

Dimension: 234 x 156 (mm)
ISBN-13: 9781509948987