Courts as Rhetorical Actors: A Rhetorical Analysis of Judicial Conflict Avoidance

Abstract

The paper starts from the assumption that there is a body of case-law on the German, the European Union (EU) level, and on the international level that is characterised by strategies of judicial avoidance. Courts for various reasons sometimes avoid deciding the substantive legal issues advanced by the parties to a conflict or put before them as a legal question in advisoryproceedings. The phenomenon is multifaceted. It can be observed in different legal contexts, in different countries, and branches of the law. From this perspective judicial avoidance is an important, yet scholarly neglected, element of judicial practice. As the paper demonstrates, it can be detected and categorised by employing the analytical tools of rhetorical science. This namely involves insights resulting from rhetorical research on ‘avoidance strategies’ in various forms of human and organisational communication. The central hypothesis of this paper therefore is that courts can be found to employ a sophisticated toolkit of classical rhetorical practices in order to avoid in their decision a ruling on focal legal issues of a dispute. The crossjurisdictional set of rhetorical practices, which the article traces in the practice of various selected high profile courts, goes well beyond the emanations of classic Western separation of powers-doctrines of ‘judicial self-restraint’, ‘political questions’, or the ‘margin of appreciation’.