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Theorizing jurisdiction

Noll, Gregor LU (2016) In The Oxford handbook of international legal theory
Abstract
Jurisdiction is a composite term referring to that which is right (jus) and that which is said (dicere). It is decisive for any consideration of jurisdiction whether one chooses to subordinate jus to dicere, or dicere to jus. As the law is always anterior to a pronouncement of justice based on it, the choice of subordination decides whether one lets the past rule over the present, or the present rule over the past. Does the law trump the decision, or does the decision trump the law? In Christian metaphysics, the temporal choice is exacerbated and stands between the past and the future. Jurisdiction is determined, primarily, by (past) creation and, ultimately, by (future) deliverance. The question is then how much weight is accorded to... (More)
Jurisdiction is a composite term referring to that which is right (jus) and that which is said (dicere). It is decisive for any consideration of jurisdiction whether one chooses to subordinate jus to dicere, or dicere to jus. As the law is always anterior to a pronouncement of justice based on it, the choice of subordination decides whether one lets the past rule over the present, or the present rule over the past. Does the law trump the decision, or does the decision trump the law? In Christian metaphysics, the temporal choice is exacerbated and stands between the past and the future. Jurisdiction is determined, primarily, by (past) creation and, ultimately, by (future) deliverance. The question is then how much weight is accorded to creation and to deliverance respectively. While international law is commonly taken to be a ‘secular’ order today, this polarity still undergirds its doctrines of jurisdiction.

This text seeks answers to two questions. First, how is a share of the world attached to a holder of jurisdictional authority so as to ‘fall under’ its jurisdiction? Second, how is the holder of jurisdictional entitlement attached to its creator? I am going to seek answers in general international law writings first (Section 2). A line of cases decided by the European Court of Human Rights (ECtHR) helps me to articulate an understanding of the term ‘jurisdiction’ additional to and different from the account given by general international law writings (Section 3). In Section 4, I shall emphasize the connection of jurisdiction to the past by considering the concept of kerygma in Christian theological tradition. Section 5, in turn, reflects the connection of jurisdiction with the future, drawing in particular on the redemptive role of human rights law. In Section 6, I find that both connections render the content of jurisdiction too unstable, and pursue the possibility of a new and secular reading of the concept. To that end, I draw on a particular text by the British philosopher Simon Critchley, which I see pointing the way towards a contemporary understanding of jurisdictional normativity. (Less)
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author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
in press
subject
keywords
kerygma, human rights law, jurisdiction, international law, Paul, Przywara, folkrätt, public international law
in
The Oxford handbook of international legal theory
editor
Orford, Anne and Hoffmann, Florian
publisher
Oxford University Press
language
English
LU publication?
yes
id
6d135559-e0f0-4fc8-baa3-e055ddcbee4b (old id 8310523)
date added to LUP
2015-12-17 08:19:37
date last changed
2016-04-16 09:00:04
@misc{6d135559-e0f0-4fc8-baa3-e055ddcbee4b,
  abstract     = {Jurisdiction is a composite term referring to that which is right (jus) and that which is said (dicere). It is decisive for any consideration of jurisdiction whether one chooses to subordinate jus to dicere, or dicere to jus. As the law is always anterior to a pronouncement of justice based on it, the choice of subordination decides whether one lets the past rule over the present, or the present rule over the past. Does the law trump the decision, or does the decision trump the law? In Christian metaphysics, the temporal choice is exacerbated and stands between the past and the future. Jurisdiction is determined, primarily, by (past) creation and, ultimately, by (future) deliverance. The question is then how much weight is accorded to creation and to deliverance respectively. While international law is commonly taken to be a ‘secular’ order today, this polarity still undergirds its doctrines of jurisdiction.<br/><br>
This text seeks answers to two questions. First, how is a share of the world attached to a holder of jurisdictional authority so as to ‘fall under’ its jurisdiction? Second, how is the holder of jurisdictional entitlement attached to its creator? I am going to seek answers in general international law writings first (Section 2). A line of cases decided by the European Court of Human Rights (ECtHR) helps me to articulate an understanding of the term ‘jurisdiction’ additional to and different from the account given by general international law writings (Section 3). In Section 4, I shall emphasize the connection of jurisdiction to the past by considering the concept of kerygma in Christian theological tradition. Section 5, in turn, reflects the connection of jurisdiction with the future, drawing in particular on the redemptive role of human rights law. In Section 6, I find that both connections render the content of jurisdiction too unstable, and pursue the possibility of a new and secular reading of the concept. To that end, I draw on a particular text by the British philosopher Simon Critchley, which I see pointing the way towards a contemporary understanding of jurisdictional normativity.},
  author       = {Noll, Gregor},
  editor       = {Orford, Anne and Hoffmann, Florian},
  keyword      = {kerygma,human rights law,jurisdiction,international law,Paul,Przywara,folkrätt,public international law},
  language     = {eng},
  publisher    = {ARRAY(0x8f0b5a8)},
  series       = {The Oxford handbook of international legal theory},
  title        = {Theorizing jurisdiction},
  year         = {2016},
}