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Navigating the Legal Landscape between the General and the Specific : General Concepts as Tools of Legal Reasoning

Linderfalk, Ulf LU (2017) In International Community Law Review 19(2-3). p.302-323
Abstract

The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations... (More)

The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations are suggested. As argued, choosing between them presents a dilemma. The first explanation prompts us to accept the occurrence of irreconcilable conflicts between different jus cogens rules. The second explanation commits us to an unacceptably broad understanding of the jus cogens prohibition of torture.

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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
concepts, human rights, icty, jus cogens, laws and customs of war, legal reasoning, torture
in
International Community Law Review
volume
19
issue
2-3
pages
22 pages
publisher
Brill Academic Publishers
external identifiers
  • scopus:85021112218
  • wos:000403572800006
ISSN
1871-9740
DOI
10.1163/18719732-12341357
language
English
LU publication?
yes
id
17e252b5-ca5d-4fd2-9da6-bd5937b00ef4
date added to LUP
2017-07-12 13:36:01
date last changed
2017-09-18 11:38:15
@article{17e252b5-ca5d-4fd2-9da6-bd5937b00ef4,
  abstract     = {<p>The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations are suggested. As argued, choosing between them presents a dilemma. The first explanation prompts us to accept the occurrence of irreconcilable conflicts between different jus cogens rules. The second explanation commits us to an unacceptably broad understanding of the jus cogens prohibition of torture.</p>},
  author       = {Linderfalk, Ulf},
  issn         = {1871-9740},
  keyword      = {concepts,human rights,icty,jus cogens,laws and customs of war,legal reasoning,torture},
  language     = {eng},
  number       = {2-3},
  pages        = {302--323},
  publisher    = {Brill Academic Publishers},
  series       = {International Community Law Review},
  title        = {Navigating the Legal Landscape between the General and the Specific : General Concepts as Tools of Legal Reasoning},
  url          = {http://dx.doi.org/10.1163/18719732-12341357},
  volume       = {19},
  year         = {2017},
}