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Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity

Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity

Author: Dr. Letizia Lo Giacco
Publisher: Hart Publishing
ISBN: 9781509948949

Published In: October 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509948987

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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 unchartered 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.

1. Introduction

I. The 'Judicialisation Turn' in International Law

II. Arguments

III. Legal Interpretation as a Form of Argumentation

IV. Scope and Limits of the Book

V. Book Outline

2. Courts and the Argumentation of International Law

I. A Legal Realist Perspective on Courts

II. Discretion in Legal Interpretation

A. Rule-Bound Justification

B. Choosing between Competing Courses of Action

III. Courts' Argumentation: Between Logic and Persuasion

IV. Governing Judicial Decisions

A. Following Judicial Decisions: An Internal Perspective

B. Judicial Decisions as a Sufficient Basis of Justification in the Practice of International Criminal Law?

3. Rethinking Judicial Decisions beyond Formal Architectures

I. Genesis and Historical Development of International Criminal Law: A Plurality of Courts

II. General Effects of Regime Development

III. The Seeds of Universalism

IV. National Courts and International Crimes

V. Approaching Judicial Decisions in National Adjudication

VI. Courts Citing Judicial Decisions: An Interim Evaluation

4. The Entrapment of Judicial Decisions

I. Citing Judicial Decisions as a Structuring Device: Incrementalism versus Revisionism

II. The Road Towards the Stabilisation of Interpretive Outcomes

A. Interpreting 'Protected Group' in Genocide Cases

B. Discretion in the Interpretive Practices of 'Protected Group'

C. Accepting Interpretive Outcomes: The Import of the ICC Statute

D. Interpretation as an Incremental Process of Content Formation

III. Deferring to the International Acquis: The Role of National Courts in Interpreting 'Protected Group'

IV. From Stabilisation to Perfect Alignment of Interpretive Outcomes: The Case of 'Armed Conflict'

A. The Concept of Armed Conflict in International Jurisdictions

B. National Courts between Entrapment and Revisionism

V. Interim Conclusions

5. Rewriting the Meaning of International Law

I. Social Acceptance as a Validator of Correctness: Any Room for Change?

II. Departing from the 'Established Jurisprudence': The Case of Genocide

III. Revisiting the Concept of 'Unlawful Combatants'

IV. Managing the Flow of Arguments through Epistemic Superiority

V. Judicial Decisions as 'Persuasive Authority'

VI. Authoritative Statements as Knowledge on International Criminal Law

6. Rethinking the Judicialisation Era

I. Structural Changes in International Legal Argumentation

II. Judicial Decisions as Epistemic Tools in the Argumentation of International Law

III. Reassessing the Role of Judicial Decisions in International Law: A Retrospective

IV. The Way Forward: A Prospective

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