If International Judges Say So, It Must Be True: Empiricism or Fetishism?
ESIL Reflections, November 2015, Vol 4, Issue 9
6 Pages Posted: 1 Dec 2015
Date Written: November 23, 2015
This Reflection approaches international law as an argumentative practice and construes the key doctrines of international law like sources or responsibility as structures of international legal argumentation. From that perspective, it offers some reflections on the contemporary inclination of international lawyers to invoke international judicial pronouncements as the ultimate validator of the fundamental structures of international legal argumentation. For most international lawyers, the key doctrines around which legal arguments must be articulated acquire their authenticity as structures of legal argumentation only once they have received the seal of international courts. The argument is made here that turning to international judges for the ultimate validation of the structures of international legal argumentation does not necessarily amount to an empowerment of the international judiciary. I argue instead that the contemporary practice of taking refuge in judicial validation should rather be construed as a self-empowerment of international lawyers themselves as it brings about a judicialization of international legal thought and leads all international lawyers to think and behave as appellate judges.
Keywords: International Law, International Legal Theory, International Courts and Tribunals, International Judges, Secondary Rules, Judicialization of Legal Thought, Foundations of International Law, Sources of International Law, Empirical Methods
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