The Role of International Courts as Interpreters and Developers of the Law: Working Out the Jurisgenerative Practice of Interpretation

TLDR

International courts are still viewed as limited actors in lawmaking, a view the paper challenges. The paper argues that meaning can only be found in the concrete application of legal provisions. The authors analyze how judicial argument, source metaphors, and the practice of interpretation give courts semantic authority and shape normative implications. The study concludes that international courts should be seen as active jurisgenerators and calls for a deeper understanding of their role within a pluralistic governance system.

Abstract

The contribution illustrates the still influential view on the role of international courts that belittles their qualities as actors in the making of international law. It summarizes why the outward show of judicial argument itself eclipses this dimension of judicial practice and then speaks on the metaphor of sources and how it has (mis)shaped accounts of international lawmaking (II). The second section then takes a step back and picks up the proposition that it is impossible to find meaning anywhere else other than in the concrete use of legal provisions. It highlights how law comes to life in the practice of interpretation and argues that this practice itself has to bear the burden of distinguishing correct from incorrect applications (III.). The third step first elucidates international courts’ semantic authority by focussing on the mighty spell of judicial precedents in international legal discourse and then turns to sketching the principal normative implications (IV). The concluding prognosis recommends paying closer regard to the qualities of international courts as actors in the jurisgenerative practice of interpretation. It ends with the suggestion to develop a better understanding of the role of international courts in a normative pluriverse in which they interact with actors on other levels of governance and negotiate spheres of authority (V).