Influential Authority and the Estoppel-Like Effect of International Law
THE FLUID STATE, George Williams and Hilary Charlesworth, eds., Federation Press, 2005
32 Pages Posted: 18 Aug 2005
Contemporary adjudication in national courts presents legal practitioners and theorists alike with some persistent puzzles about the kinds of legal resources that domestic judges can legitimately invoke. These seemingly arcane questions generate considerable interest, in no small part because of how they implicate the venerable but increasingly outmoded conception that has long held the legal imagination in its grip. Inspired by positivism, this picture of legal authority distinguishes sharply between binding and non-binding sources of law and consequently imagines the judge as either entirely free or completely constrained. Perhaps the strongest argument in favor of this traditional picture is found in the reception of international law in dualist domestic legal systems such as we find in many common law and mixed jurisdictions. However, because domestic judges consistently use international law in ways that the traditional view must count as mistakes, even this apparently strongest case seems to tell against, not for the traditional picture. A particularly dramatic example is found in the estoppel-like use of international law values. Thus, in cases across jurisdictions and across areas as diverse as the private law of contract and the recognition of foreign law, courts on occasion invoke non-binding international law as a reason to prohibit or bar the enforcement of formally valid legal acts. This paper examines the reasoning in these cases and argues that, far from being mistakes, they can actually be understood as part of an intelligible pattern of reasoning. Moreover, these recognizably legal patterns of reasoning resonate in important ways with other elements of the legal system. So rather than dismissing these unorthodox invocations of international law too quickly, we may instead be prompted to reflect on what they can tell us about the waning power of the traditional conception of legal authority.
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