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- Linderfalk, Ulf
(author)
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All the Things That You Can Do With Jus Cogens: : A Pragmatic Approach to Legal Language
- 2013
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In: German Yearbook of International Law. - 0344-3094. ; 56, s. 351-386
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Journal article (peer-reviewed)abstract
- Investigating the meaning of conceptual terms is an important task for international legal scholars. In the analysis of the usage of conceptual terms in international legal discourse, traditionally, most international lawyers have confined studies to the descriptive meaning of those terms. They have assumed that conceptual terms describe a relationship between, on the one hand, the particular properties identifying a particular phenomenon or state of affairs as one that belongs to the extension of a particular concept, and on the other hand, the legally relevant inferences ensuing from the categorisation. While this theory works reasonably well as long as studies are confined to the meaning of conceptual terms in law, it is ill-suited for any similar study of international legal discourse. In the search for possible alternatives, this article adopts instead a pragmatic approach to legal language. More specifically, it equates the meaning of a conceptual term with its functionality, that is, with what the uttering of a conceptual term potentially does to the beliefs, attitudes, and behaviour of participants in international legal discourse. The investigation proceeds in two steps. As Section II argues, a functionality-based theory of meaning suggests a method (referred to throughout the article as functionality analysis) that can be used for the analysis of international legal discourse. Sections III, IV and V illustrate the ramifications of functionality analysis by applying it relative to the usage of one particular conceptual term, namely jus cogens.
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| 2. |
- Linderfalk, Ulf
(author)
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The exercise of discretion in international law – why constraining criteria have a proper place in the analysis of legal decision-making
- 2021
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In: German Yearbook of International Law. - : Duncker & Humblot GmbH. - 0344-3094. ; 62:1, s. 407-430
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Journal article (peer-reviewed)abstract
- In international law, the exercise of legal discretion is constrained by criteria, such as the abuse of rights doctrine and the principle of legal certainty. The hitherto research of these criteria gives reason to take up a discussion on the appropriate way of conceptualising discretion and constraining criteria. This article, in contrast to the belief of other scholars, makes a case for the understanding of the exercise of discretion as an activity separate from legal interpretation. As it insists, the application of a constraining criterion is wholly distinct from the form of arguments that can be derived from rules of interpretation.
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