Courtspeak: A Method to Read the Argumentative Structure Employed by the International Court of Justice in Its Judgments and Advisory Opinions

Abstract

It is intuitive that a persuasive judgment has more chances to achieve compliance, to set a precedent and to generally influence the authority of a court. It is more difficult to identify the writing tools that create its rhetorical structure. This paper defines and describes ‘courtspeak’ relying on the elements of the text that have been first identified by a group of literary theorists commonly known as “Russian Formalists”. First, the element called ‘Motivation’ explains how every argument must find its justification in the unity the judgment. Second, the distinction between the Fabula and the Syuzhet describes the role of the plot in the construction of the judgment. Third, the Heroes refer to the development of legal arguments as characters of the judgment. Fourth, the Voice is the element of the text that represents the point of view from which a judgment is narrated. Finally, the Theme of the judgment represents the sum of all the formal elements of the work and describes the literary existence of the judgment. This paper focuses on the relationship between text and context in order to describe the role of writing techniques in judicial argumentation and to propose a method to examine the argumentative structure of judgments issued by the International Court of Justice. The analysis of the text allows to dig out the contextual factors that are beyond the control of international judges and affect the authority of a court.

Keywords: Semantic authority, international court of justice, rhetoric, legal argumentation, international dispute settlement, Russian formalists, law and literature