Is the Quality of the ICC’s Legal Reasoning an Obstacle to Its Ability to Deter International Crimes?

2020 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
Legal Reasoning ◽  
International Crimes

scholarly journals The Transformation of Trusts as a Legal Category, 1800–1914

1987 ◽  
Vol 5 (2) ◽  
pp. 303-350 ◽  
Author(s):  
Gregory S. Alexander
Keyword(s):  
Constitutional Law ◽  
Legal Reasoning ◽  
Equal Protection ◽  
The Public

Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. In constitutional law, for example, equal protection analysis turns crucially on categories of affected interests. Specialists in landlord-tenant law debate whether the implied covenant of habitability is a property doctrine or a contract doctrine. And if the public/private distinction is dead, as some reports have suggested, it rules us yet from its grave. Legal categories are not simply housekeeping devices. They inhibit our imagination of what is acceptable, indeed, of what is possible. They take on a quality of givenness and thereby disempower us. We can retain control over categories, and ultimately over our own legal imagination, only by reminding ourselves that we have created them and are capable of remaking them.

scholarly journals Imagining by feeling: a case for compassion in legal reasoning

2017 ◽  
Vol 13 (2) ◽  
pp. 143-157 ◽  
Author(s):  
Maksymilian Del Mar
Keyword(s):  
Rule Of Law ◽  
Legal Reasoning ◽  
Multiple Perspectives ◽  
The Rule Of Law ◽  
Evaluative Processes

AbstractThis paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

scholarly journals Police Powers, Indirect Expropriation in International Investment Law, and Article 31(3)(c) of the VCLT: A Critique of Philip Morris v. Uruguay

2018 ◽  
Vol 9 (1) ◽  
pp. 98-124 ◽  
Author(s):  
Prabhash RANJAN
Keyword(s):  
Public Health ◽  
Legal Reasoning ◽  
International Investment ◽  
Vienna Convention ◽  
International Investment Law ◽  
Police Powers ◽  
Philip Morris ◽  
Regulatory Measures ◽  
Investment Law

AbstractGiven the global contestation against BITs and ISDS, the outcome of thePhilip Morrisv.Uruguaycase upholding Uruguay’s right to regulate for public health is important for the international investment law community. However, it is not just the outcome of a case but also the quality of legal reasoning that is significant in building the legitimacy of the ISDS system. This paper focuses on the reasoning adopted by the tribunal in deciding whether Uruguay’s regulatory measures resulted in the expropriation of Philip Morris’s investment. The paper critiques the tribunal’s use of Article 31(3)(c) of the Vienna Convention on the Law of Treaties to invoke the police powers rule in interpreting the expropriation provision of the Switzerland-Uruguay BIT. The tribunal’s reasoning was internally inconsistent and based on abuse of arbitral precedents. Clarity in legal reasoning by ISDS tribunals is imperative to boost the legitimacy of the ISDS system for all stakeholders.

Striking the Balance between Custom and Justice − Creative Legal Reasoning by International Criminal Courts

2016 ◽  
Vol 16 (5) ◽  
pp. 913-934
Author(s):  
Marc Schack ◽  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Criminal ◽  
Legal Reasoning ◽  
Criminal Court ◽  
Criminal Courts ◽  
Customary International Law ◽  
International Crimes ◽  
State Immunity ◽  
Head Of State ◽  
High Level ◽  
Principle Of Legality

Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for ‘new’ or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental ‘rule of law’ principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call ‘creative’ application of customary international law but critics label as ‘poor legal reasoning’. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between ‘safe-bet’ application of the relevant sources of law and ensuring international criminal justice.

Murder under duress and judicial decision-making in the House of Lords

Legal Studies ◽  
1988 ◽  
Vol 8 (1) ◽  
pp. 61-73
Author(s):  
Lynden Walters
Keyword(s):  
Decision Making ◽  
Legal Reasoning ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
House Of Lords ◽  
Present Decade ◽  
Mental Element

While finding fault with House of Lords’ decisions in the field ofcriminal law is by no means a new academic sport, the present decade is proving particularly fruitful for the critic. The precise ramifications of Caldwelll and Lawrence are still being thrashed out. seymour, on manslaughter, was unforgiveably ambiguous. Moloney and Hancock and Shankland left the mental element in murder hopelessly opaque. In impossible attempts Anderton v Ryan revealed a degree of ineptitude which even the House of Lords had to recognise in overruling itselfonly a year later in Shivpuri.It is not simply a questionofacademics taking issue with the outcomeof a particular decision. The further, and in some respects even more worrying, aspect of many of these decisions is the quality of the legal reasoning they embody.

Immunoferritin localization of intracellular antigens in positively stained frozen sections

1978 ◽  
Vol 36 (2) ◽  
pp. 168-169
Author(s):  
K. T. Tokuyasu
Keyword(s):  
Surface Tension ◽  
Water Surface ◽  
Thin Layers ◽  
The Other ◽  
Positive Staining ◽  
Frozen Sections ◽  
The Past ◽  
Ultrathin Frozen Sections ◽  
Definition Of

During the past investigations of immunoferritin localization of intracellular antigens in ultrathin frozen sections, we found that the degree of negative staining required to delineate u1trastructural details was often too dense for the recognition of ferritin particles. The quality of positive staining of ultrathin frozen sections, on the other hand, has generally been far inferior to that attainable in conventional plastic embedded sections, particularly in the definition of membranes. As we discussed before, a main cause of this difficulty seemed to be the vulnerability of frozen sections to the damaging effects of air-water surface tension at the time of drying of the sections.Indeed, we found that the quality of positive staining is greatly improved when positively stained frozen sections are protected against the effects of surface tension by embedding them in thin layers of mechanically stable materials at the time of drying (unpublished).

Lithography below 100 nm

1983 ◽  
Vol 41 ◽  
pp. 96-99
Author(s):  
L. D. Jackel
Keyword(s):  
Spatial Distribution ◽  
Electron Beam ◽  
Electron Scattering ◽  
Electron Beam Lithography ◽  
Substrate Material ◽  
Local Electron ◽  
Electron Dose ◽  
Positive Resist ◽  
Exposure Process

Most production electron beam lithography systems can pattern minimum features a few tenths of a micron across. Linewidth in these systems is usually limited by the quality of the exposing beam and by electron scattering in the resist and substrate. By using a smaller spot along with exposure techniques that minimize scattering and its effects, laboratory e-beam lithography systems can now make features hundredths of a micron wide on standard substrate material. This talk will outline sane of these high- resolution e-beam lithography techniques.We first consider parameters of the exposure process that limit resolution in organic resists. For concreteness suppose that we have a “positive” resist in which exposing electrons break bonds in the resist molecules thus increasing the exposed resist's solubility in a developer. Ihe attainable resolution is obviously limited by the overall width of the exposing beam, but the spatial distribution of the beam intensity, the beam “profile” , also contributes to the resolution. Depending on the local electron dose, more or less resist bonds are broken resulting in slower or faster dissolution in the developer.

Convergent Beam Electron Diffraction

1978 ◽  
Vol 36 (3) ◽  
pp. 304-315
Author(s):  
G. Lehmpfuhl
Keyword(s):  
Electron Diffraction ◽  
Diffraction Pattern ◽  
Crystal Surface ◽  
Diffraction Spot ◽  
Crystal Thickness ◽  
Large Area ◽  
Electron Microscopic ◽  
Additional Information ◽  
Microscopic Investigations

Introduction In electron microscopic investigations of crystalline specimens the direct observation of the electron diffraction pattern gives additional information about the specimen. The quality of this information depends on the quality of the crystals or the crystal area contributing to the diffraction pattern. By selected area diffraction in a conventional electron microscope, specimen areas as small as 1 µ in diameter can be investigated. It is well known that crystal areas of that size which must be thin enough (in the order of 1000 Å) for electron microscopic investigations are normally somewhat distorted by bending, or they are not homogeneous. Furthermore, the crystal surface is not well defined over such a large area. These are facts which cause reduction of information in the diffraction pattern. The intensity of a diffraction spot, for example, depends on the crystal thickness. If the thickness is not uniform over the investigated area, one observes an averaged intensity, so that the intensity distribution in the diffraction pattern cannot be used for an analysis unless additional information is available.

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