National Judges and International Law: To Be (An Independent Judge) or Not to Be?
19 Pages Posted: 5 Dec 2013
Date Written: December 5, 2013
Judges in democratic states assume different roles. They can variously: serve as a legitimating agency of the state; avoid exercising jurisdiction for extra-legal considerations; defer the matter back to the other branches of government; enforce the law as required by the rule of law; or, develop the law and introduce ethical judgment beyond the positive application of the law. The paper examines two functions of national courts – the avoiding (section 1) and the deferral (section 2) roles. Each of these roles is analysed in light of different international humanitarian law cases from the UK, US and Israel, with the aim of evaluating national courts’ compliance with the rule of law principles. In this paper, the rule of law should not be understood in its liberal understanding, which defines it simply as a formal legal principle, an objective legalistic standard as opposed to the subjective flexibility of politics. Rather, it should be understood as a political value chosen to frame, through an ongoing and constant process, the organization of the (international) society. Indeed, the rule of law is the primary (and probably the only) legitimate reason d’être of national courts - also when adjudicating international law cases.
Keywords: international law; national courts; international humanitarian law; law and politics; international rule of law; critical legal studies
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By Pål Wrange