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The emperor’s new clothes – What if no Jus cogens claim can be justified?

Linderfalk, Ulf LU (2020) In International Community Law Review 22(2). p.139-162
Abstract

This article deals with an important question of legal justification: What reasons serve to justify a claim that a norm has the status of jus cogens. This question can be approached from two fundamentally different perspectives – in this article referred to as legal positivism and legal idealism. As earlier research has demonstrated, legal positivists have great difficulty justifying their jus cogens claims. What this article argues is that legal idealists face a no less difficult task, and that this prompts an entirely new understanding of the jus cogens discourse. If there is no way for a lawyer to justify a jus cogens claim, then neither is there any way for him or her to refute propositions put forth by others. Jus cogens discourse... (More)

This article deals with an important question of legal justification: What reasons serve to justify a claim that a norm has the status of jus cogens. This question can be approached from two fundamentally different perspectives – in this article referred to as legal positivism and legal idealism. As earlier research has demonstrated, legal positivists have great difficulty justifying their jus cogens claims. What this article argues is that legal idealists face a no less difficult task, and that this prompts an entirely new understanding of the jus cogens discourse. If there is no way for a lawyer to justify a jus cogens claim, then neither is there any way for him or her to refute propositions put forth by others. Jus cogens discourse becomes a safe haven for all kinds of arguments, of which, legally speaking, no one can ever be regarded as any more acceptable than any other.

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Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Identification of jus cogens norms, Jus cogens, Legal idealism, Legal justification, Peremptory international law, Rationality
in
International Community Law Review
volume
22
issue
2
pages
24 pages
publisher
Brill Academic Publishers
external identifiers
  • scopus:85092392937
ISSN
1871-9740
DOI
10.1163/18719732-12341425
language
English
LU publication?
yes
id
85bfc0b9-6d2f-4960-bdcf-dec6e77f6c32
date added to LUP
2020-11-19 11:53:25
date last changed
2020-11-20 01:27:05
@article{85bfc0b9-6d2f-4960-bdcf-dec6e77f6c32,
  abstract     = {<p>This article deals with an important question of legal justification: What reasons serve to justify a claim that a norm has the status of jus cogens. This question can be approached from two fundamentally different perspectives – in this article referred to as legal positivism and legal idealism. As earlier research has demonstrated, legal positivists have great difficulty justifying their jus cogens claims. What this article argues is that legal idealists face a no less difficult task, and that this prompts an entirely new understanding of the jus cogens discourse. If there is no way for a lawyer to justify a jus cogens claim, then neither is there any way for him or her to refute propositions put forth by others. Jus cogens discourse becomes a safe haven for all kinds of arguments, of which, legally speaking, no one can ever be regarded as any more acceptable than any other.</p>},
  author       = {Linderfalk, Ulf},
  issn         = {1871-9740},
  language     = {eng},
  number       = {2},
  pages        = {139--162},
  publisher    = {Brill Academic Publishers},
  series       = {International Community Law Review},
  title        = {The emperor’s new clothes – What if no Jus cogens claim can be justified?},
  url          = {http://dx.doi.org/10.1163/18719732-12341425},
  doi          = {10.1163/18719732-12341425},
  volume       = {22},
  year         = {2020},
}