The Contemporary International Judicial Process. Law and Logic, and the “Law” / “Politics” Dichotomy

Abstract

There are some few, land-mark decisions that stand out in the history of any tribunal, as either marking the end of an historical era in Court jurisprudence, or else presaging new and radically different trends in judicial policies for the future. This is understandable enough in the case of a Common Law or Common Law-influenced court, since the Common Law doctrine of precedent admits of the existence of locus classicus decisions; but it is also true with Civil Law courts where the authoritative text-writers seem very readily, and quickly, to establish their own consensus as to which Court decisions are worthy of notation and analysis in depth, in the learned doctrines, as heralding significant change to the jurisprudence constante. With Common Law-influenced tribunals, it may well be the public reaction to a judgment and the public perception of its political impact, rather than the opinio iuris, that supplies the dynamic, dialectical, law-in-the-making element. Charles Evans Hughes, a sometime Justice of the U.S. Supreme Court, and then, briefly, a Judge of the old Permanent Court of International Justice in The Hague, before his resignation to take up the Chief Justiceship of the U.S. Supreme Court, identified certain land-mark decisions in the work of the U.S. Supreme Court, on the basis of their negative public impact at the time of their first publication, and then the immense political reaction that they brought in their wake.