Evasive Courts: A Rhetorical Analysis of Judicial Conflict Avoidance

Abstract

The paper starts from the assumption that there is a significant body of case-law on both the national, European and international level that is characterised by strategies of judicial evasion. Courts for various reasons tend to avoid deciding the substantive legal issues advanced by the parties to a conflict or put before them as a legal question in advisory-proceedings. The phenomenon is multifaceted. It can be observed in different legal contexts, different countries and branches of law. We hypothesize that judicial evasion is a central but neglected element of judicial practice which can be detected and categorized by employing the analytical tools of rhetorical science. This namely involves insights resulting from rhetorical research on ‘evasion-strategies’ in various forms of human and organizational communication. Such analytical tools can help, beyond mere legal scrutiny, to better detect and explain judicial evasion. The central hypothesis of our paper therefore is that courts can be found to employ a sophisticated tool-kit of classical rhetorical practices in order to evade in their decision a ruling on focal legal issues of a dispute. The cross-jurisdictional set of rhetorical practices, which can be identified, goes well beyond the emanations of classic Western separation of powers-doctrines of ‘judicial self-restraint’, ‘political questions’, or the margin of ‘appreciation’. Our paper is, therefore, supposed to break new ground in exploring the phenomenon from a comparative perspective comprising legal methodology as well as classic and modern rhetorical research. We hold that judicial evasion is only one of numerous fields in which a turn to rhetoric and adjacent linguistic studies complementing legal methodology can generate new insights.