The emperor’s new clothes – What if no Jus cogens claim can be justified?
(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.
(Less)
- author
- Linderfalk, Ulf LU
- organization
- publishing date
- 2020
- 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
- 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
- 2022-10-12 13:18:28
@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}},
keywords = {{Identification of jus cogens norms; Jus cogens; Legal idealism; Legal justification; Peremptory international law; Rationality}},
language = {{eng}},
number = {{2}},
pages = {{139--162}},
publisher = {{Brill}},
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}},
}