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The Role of Judges and Legal Scholars
Jan-14-06 08:02 pm
In the wake of Judge Samuel Alito's confirmation hearings, there has been much discussion of the role of a judge. I think Steve Bainbridge succinctly gives the best answer:
Whether the judge in question is a Supreme Court justice, a state judge, or a member of the International Court of Justice, his or her role is to "say what the law is." Of course, there can be tremendous disagreement about "what the law is," but that is what a judge must seek to determine. In a similar vein, I think legal scholars often get their roles confused. While a legal scholar can certainly make recommendations about what the law should be, those recommendations should never be done under the guise of saying what the law is. I worry about international legal scholars in particular, because unlike in much of domestic law, there is no stare decisis in international law, and state practice can often be difficult to assess. There is clearly a temptation to say that a rule of customary international law exists because one wants it do exist, rather than because the putative rule is truly controlling (reflected in state practice) and authoritative (believed by states to be the law). Tags9/11 Commission aggression Alien Tort Statute censorship CIA civil liberties civil rights civil war climate change compensation Congress contractors crimes against humanity customary international law cyber security democracy detainee detainees detainess development diplomatic immunity electronic surveillance enemy combatant enemy combatants enviromental law environmental law expropriation extradition foreign law game theory genocide global economy habeas corpus human right human rights humanitarian assistance intelligence International Court of Justice international courts International Criminal Court international criminal law international environmental law international finance international health international law international legal theory international trade just war doctrine law of the sea law of war laws of war military commission military commissions military law multilateral negotiations nationalization natural law North Korea nuclear nonproliferation nuclear proliferation nuclear weapons outer space peacekeeping piracy poverty preemption prisoner of war prisoners of war rendition rule of law self-executing separation of powers sovereign wealth fund sovereignty Supreme Court SWF terrorism torture treaties United Nations universal jurisdiction use of force war crimes |
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