How do and should domestic courts interpret international law? Insights from the jurisprudence of HLA Hart and Duncan Kennedy

Abstract

ABSTRACTJurisprudential theories have rarely taken international law into account, yet can provide insights into how domestic courts can and should conceptualise their interpretative activity. This paper relies on the works of HLA Hart and Duncan Kennedy to show that the domestic judicial interpretation of international law should be conceptualised as analogous to a hinge. The hinge analogy highlights the connecting role of domestic courts between international and domestic law, their dynamic, law-creating powers in both the domestic and the international legal order, and the legal frame they need to observe when interpreting international law. Moreover, like a good hinge that is robust and well-oiled and, therefore, fulfils its purpose, the interpretative reasoning of domestic courts must display specific characteristics in order to fulfil its role. To illustrate the different prongs of the analogy, I rely on the case law of Swiss courts.