Currently, there exist several academic and legal questions on which common perception is not established among states. One of them concerns the interpretation of ‘general principles of law’ ...mentioned in Article 38(1)(c) of the Statute of the International Court of Justice. Variance in the interpretation of ‘general principles of law’ manifests itself mainly in controversies over whether they are principles of domestic law or international law and over the implication of ‘civilized nations’ that qualifies ‘general principles of law’. The article aims at analysing such divergent views surrounding ‘general principles of law’ and voicing the authors’ view on the matter. By examining the principles in comparison with international conventions and custom, and in terms of wordings employed in the relevant provisions, the article attempts to demonstrate that they must be viewed as principles shared by national law systems of certain states. It also argues that in view of the essential characteristics of international law, and in terms of the meaning of the term ‘civilized nations’, ‘general principles of law’ cannot be deemed a universal source of international law, and in particular, that since the phrase ‘civilized nations’ was not intended to include all states in the world, it is necessary to amend the relevant wording.
The question whether international law is a system is one of the modern topics discussed by specialists of international law. The text of P. Saganek poses this question with respect to the rules on ...international responsibility. The two aims are to establish whether the rules on state responsibility are a system themselves and whether they may prima facie support the idea of international law as such a system. The two prima facie answers are positive. Every violation of international law gives rise to state responsibility if it can be attributed to a state and no circumstance precluding wrongfulness is in place. In this sense the rules on state responsibility form a sub-system supporting the thesis on the systemic nature of international law. On a closer analysis one can encounter several doubts as to both answers. Paradoxically those rules are too ideal, too systemic. The author – without denying the necessity of several if not the majority of the identified rules – refers to a tendency of presenting as law some non-binding documents prepared by expert groups. This is a part of a wider process of ‘paper-law’. In this sense expert groups engage in ‘creating the language’ in which the true subjects of international law are expected to speak.
The registrar and the evangelist: Exploratory thoughts on the methodological interaction between the law and Biblical science Both law and religion (at least in the so-called religions of the Book) ...are often defined by their handling of texts, to which a certain authority is attributed. This similarity is the starting point of the author’s exploration, which attempts to provide a perspective for answering the question of how law and religious science can learn from each other (and in particular the first from the second) on a methodological level. Compared to the field of Law and Literature, the interaction between law and religion appears to be in-depth, but limited to a number of areas. A broader interaction is therefore certainly possible, and probably also desirable. The analysis is made based on nine examples. First of all, the author examines what it means to attribute authority to a text rather than to one or more persons. In this context there appears to be an important difference between authoritative texts of a religious or legal nature. The latter are at least in principle open to amendment, which is generally not the case for the former. This has consequences for how they are dealt with and how they are interpreted. The authoritative texts have a special and probably unique position, but this does not alter the fact that they function within a broader framework. Recent evolutions in law have put pressure on the uniqueness of texts, making a more nuanced approach inevitable. The canonisation concept can be a useful tool in this respect. The question then arises as to the authorship of the authoritative texts. Neither in the religious nor in the legal context is the answer to this question self-evident. However, the question is relevant because it gives an indication of the way in which the texts were written, especially if the author’s intentions are given a special status in the interpretation of the text. Nevertheless, this concept is more problematic than is usually recognised when interpreting legal texts. If one ignores the conflicting and often polemical context in which texts have been drafted, this is even more the case. Here, too, experiences with the interpretation of Bible texts can provide relevant examples for lawyers. Texts, however, do not only have authors, but also readers, who are a necessary condition for interpretation. Authoritative texts generally have temporal ambitions that transcend the contemporaries of the “authors”. This temporal dimension also has consequences for the interpretation of texts, especially when a text is in fact a patchwork of sections of text, which are not necessarily written at the same time and in the same context. A possible objection to an excessive interaction between legal and religious thinking could be to emphasise the other goals of both genres of text. This remark is pertinent, but should not be exaggerated either. Just as religious texts pursue not only orthodoxy but also orthopraxy, the traditional view that legal texts only aim to regulate behaviour, and not opinions or views, is probably too sharply formulated. The tension between conviction and practice occurs in both areas, although not necessarily in the same form. Finally, we will briefly discuss the possibility of distinguishing rhetorical and literary forms and techniques in legal texts. This leads to the conclusion that lawyers have a lot to gain from having their dealings with the authoritative texts of their science enriched by taking note of the methodological discussions that have taken place within the framework of biblical science. This need not to affect the autonomy of legal science neither does it replace the familiar hermeneutical insights, but it makes it possible to detect blind spots in one’s own handling of texts and to explore new traces of interpretation.
The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems ...accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.
This article proposes a new theory, “premise theory”, to account for recent international criminal courts’ practice on finding general principles of law. After analysing the traditional theory of ...transposition from national to international legal settings, and the modification/choice model, this article demonstrates that the focus should be shifted from arbitrariness to the determinants of results of recognizing general principles of law. Premise theory explains a mechanism that judges modify a common legal principle or choose the most appropriate national legal principle to apply to the issue at hand to reflect the premises of the legal field, the court, and, sometimes, even the individual case. This article concludes with a proposal for utilizing premise theory as an explanatory tool and as a guide for legal reasoning to increase judicial transparency and predictability. Lastly, it advocates for the application of premise theory to other areas of international law.
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