This Chapter first explains what the ECtHR regards as the object of review in cases where an alleged violation of the Convention is caused by legislation: is this the legislation as such (which would invite general and more abstract review), or is it the individual decision applying this legislation (which would invite individualised and more concrete review), or perhaps both? The chapter then turns to discussing how the Court has tried to reconcile its task of offering individual justice and general constitutional interpretations. Specific attention is paid in this regard to the role of precedent-based reasoning in the Court’s case law and to case-based review, incrementalism and the development of general principles. Finally, the legal effect of these general principles is discussed (so-called ’res interpretata’ or force of interpretation), in contrast to the application thereof to the facts of the individual case.

Should acts that are somewhat right and somewhat wrong be permitted or prohibited by the law? Five theories are presented and discussed. Each is evaluated with respect to how well it meets five desiderata. The first holds that a plausible theory should be decisive in the sense that it must always generate a practical ought. The court cannot refrain from ruling on a case, every case brought in front of the court must be resolved. The second desideratum is that the court should not be permitted to issue a ruling it knows to be incorrect. The third is an addendum to the second: a ruling based on a sincere but false belief is not acceptable for the same reason as a sincere but incorrect ruling on the soccer field is. The fourth desideratum is that a ruling must be predictable (after a precedent has been established) for agents with access to all relevant facts. Finally, the fifth desideratum is Aristotle’s observation that judges (and everyone else) should treat like cases alike. I argue that the only theory that meets all five desiderata is a view I call precedentism. According to this theory, doctrinally indeterminate oughts are indeed indeterminate, but precedents can generate new determinate practical oughts.

Chapter 7 addresses the following question: How can reflexivity be promoted in the collective context of investor-state dispute settlement, so as to help bridge individually held views by arbitrators that often come into competition or conflict with one another? The response that this chapter offers is that collective reflexivity can be promoted by acknowledging the presence of moral responsibility in arbitrators and by arbitrators committing to five distinct judicial virtues, namely: faith, humility, acquiescence, integrity, and candour. Judicial virtues are habits and mental dispositions, not an equation for the courtroom. They are thus meant as a framework offering guidelines and a roadmap to develop better deliberative practices. The chapter analyses the content of each virtue and assesses observable behaviour in investor-state dispute settlement under each of them.

The story finally gets to the interpretation and application of legal norms to the facts of the case. This chapter deals with the first interpretive step, called law-ascertainment, where the interpreter identifies the rules that are relevant to the case at hand. Donning the hat of an explorer, the interpreter maps the body of norms precedents in concentric circles – starting with the sources closest to the centre of gravity of their judicial regime and gradually venturing into more peripheral territory. The results of these practices explains the degree of cohesion or fragmentation in international law. As the legal system grows more complex, interpreters no longer have time and resources to master it all, and prove increasingly partial and selective in their legal readings. The emergence of self-contained regimes is largely due to epistemic constraints which, in turn, reflect the social structures of the international judicial community.

The common law largely consists of rules established in precedents. The rule established in a precedent is the rule that the precedent court stated governed or decided the case before it. That rule is the holding of the precedent. Most statements in judicial opinions are either factual or legal. Factual statements consist of the facts and history of the case. The central legal statement is the holding. Most other legal statements in an opinion are dicta – singular, dictum. Dictum means something said. The holding of a case is binding on lower courts and the deciding court. Dicta are not binding: they concern rules but are not rules. Typically, dicta signal a court’s possible future actions. For example, a dictum may be a rule that the court suggests would be desirable although it is not presently being adopted; a statement of where it would be desirable for the law to go; or a criticism of an established rule that does not rise to the level of undoing the rule. Although dicta are not binding, they can have legal import. For example, they may be employed by a court to foreshadow future changes in the law.

Chapter 2 accounts for the selection of case law which forms the basis of the legal analyses of Article 13. The chapter, further, accounts for three building blocks of importance for the analyses. First, how the Court has provided little abstract and principled reasoning concerning the content of Article 13. Second, how the Court's method of interpretation, as such, provides few answers as to how Article 13 could and should be construed and applied. Third, how the wider precedential effect of the Court's judgments may influence how the Court construes and applies Article 13 in individual cases. These building blocks explain, at least partly, why there there has been, and still is, considerable uncertainty concerning the content of the case law and why the Court's law-making potential concerning Article 13 still is large. The chapter, also, briefly explains how legal literature has been used to clarify the content of Article 13 and why a larger comparative analysis has not been performed.

This chapter addresses the question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence that implies a corpus of cases. Frese shows empirically how the corpus of CJEU cases, built over the course of the past sixty years, assigns different degrees of authority to each case according to how the court uses them. This chapter demonstrates that the network approach to the study on precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative from the scholarly perspective to the CJEU’s perspective by tracing the court’s own references and citations to its past cases. In departing from traditional theories of what precedent is and how it constrains, the chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it is furthermore shown how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others less. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows that this approach should refine and supplement, rather than substitute, EU law doctrinal analyses.

Lawyers are problem solvers, and the specific job of constitutional lawyers is to solve problems that arise out of the basic political arrangements of the American political community, arrangements that include the written Constitution, the institutions of the federal government that the text authorizes and of the state governments that it presupposes, the community’s commitment to limit public action by constitutional prohibitions, and the mechanism of judicial review by which constitutional law controversies are usually resolved. The previous four chapters have said a great deal about the tools and perspectives constitutional lawyers use in articulating arguments that they hope will persuade readers that their proposed solution to a problem is the right one. With those tools and perspectives in mind, what we can say about how the readers are to decide which of two or more competing solutions is in fact the most persuasive one?

Constitutional law’s twofold logic of inquiry into authorization and prohibition provides the basic structure for constitutional law reasoning. It also supplies the method by which constitutional lawyers break down into discrete, manageable questions the complex set of facts and legal claims that a difficult constitutional problem presents. Finally, as Chapter 2 discussed, this logic rests on several presuppositions that further shape the analysis of any constitutional problem. We can now begin to consider how to solve a problem once we have identified the questions of constitutional law it raises. The answer to a constitutional question that is at all perplexing, or controversial among competent lawyers, can seldom if ever be identified by simply pointing to the constitutional text. Questions that can be answered in that fashion (do Wyoming and California really elect the same number of senators?) do not give rise to serious constitutional law debate, however puzzling they may be from other perspectives.

The law of the sea is a great laboratory for observing the fabric of international law through the interactions between a variety of judicial bodies with jurisdiction to interpret and apply the same legal rules and principles. At first, the plurality of judicial fora available under UNCLOS has created concerns of fragmentation and of competition and forum shopping. These have proved so far unwarranted, since the tribunals generally deliver a uniform interpretation of the applicable law or tend at least toward harmonization. Tribunals have aimed to achieve clarity and consistency of the case law as well as transparency and predictability of the delimitation process. The concept of acquis judiciaire has been used to designate this mechanism of gradual building of a uniform law through the reiteration and cross-referral to existing judicial decisions. It is both a concept and a regulatory tool. It underlies a wilful search of harmonization and shows that judges are essential actors for ensuring the coherence of the international legal system.

Critics have raised concerns that investment arbitration tribunals treat like cases differently – raising problems of consistency – and different cases the same – creating problems of correctness. Using network analyses of case citations, this chapter examines an observable selection of what a tribunal considers to be ‘relevant’ precedent. The author finds that tribunals are more concerned with consistency than correctness, with many tribunals citing precedents based on textually dissimilar treaties. However, this is contrary to what states consider the priority in ISDS reform debates – in which correctness is higher than consistency in the hierarchy of policy preferences. The chapter concludes that states can resolve that mismatch by hard-coding their policy preferences into institutional design. It is argued that, as part of the ISDS reform, states should make the ordering between correctness and consistency considerations explicit when reshaping adjudicatory authority in future ISDS institutions.

The growing judicialization of ISDS through the use of precedent may be contributing to improved consistency in the interpretation of the FET standard. The FET standard and its interpretation by arbitral tribunals has been blamed for giving foreign investors carte blanche to sanction governments over broad swathes of policy. It is said to be lacking any common definition and that it is a vague and ambiguous catch-all term. This chapter provides a rigorous qualitative and quantitative empirical assessment of the use of citations and their role in the development of the FET standard consistently by tribunals across time. Based on the in-depth exploration of FET case law the authors find that three landmark cases have a de facto stare decisis with the effect of reconciling competing interpretations and ultimately providing a relatively consistent standard.

The general assessment of the problem of the use of previous decisions in international adjudication usually starts from the many statements to the effect that ‘there is no rule of precedent in international law’. Reliance is mainly placed on specific statutory rules, starting from Article 38(1)(d) of the Statute of the International Court of Justice (ICJ), which is understood to authoritatively reflect the sources of international law and states that the Court ‘shall apply ... judicial decisions’ as ‘subsidiary means for the determination of rules of law’ subject to the operation of Article 59, which appears to rule out any endorsement of a rigid rule (or practice) of stare decisis. These approaches have a common thread: they address the question of the use and authority of previous decisions in international adjudication as one regulated by rules. Yet, they are never found to provide a satisfactory answer to the problem. This chapter offers an alternative to the traditional outlook, challenging the oft-repeated truism that ‘there is no rule of precedent in international adjudication’ by arguing that it is desirable to shift the analysis from an almost mythological rule of precedent – or an equally esoteric belief in a lack thereof – to more tangible rules on precedent. These may – and do – include rules in which a specific understanding of the question is endorsed by the statutory provisions of a specific international adjudicator, but is not exhausted by them, as other rules of different nature and origin (including, but not limited to, organisational directives, rules on submissions, on evidence and on law ascertainment, as well as those concerning systems of challenge, appeal and control) also have an impact – with varying degrees of directness – on the role, possible uses and authority of the past. This study is based on the identification of such rules and their treatment. Its overall purpose is to show how, in the absence of one rule of precedent, the many rules on precedent can contribute to shape the use of the past by international adjudicators, and their mindset in doing so. The approach taken is based on the examination of existing or purported rules, and thus is both rule-based and aimed at rule synthesis. It is not, however, merely descriptive: rather, it also considers implications which could be found useful in the creation of new adjudication mechanisms, and provides insights on potential avenues of reform.

This chapter investigates the way in which international law treats reallocated private rights post delimitation. In doing so, it examines the various mechanisms which are available in international law for the accommodation of such rights on land and at sea, respectively. Firstly, the study compares the conventional mechanisms which are employed by states. Next, it compares the mechanisms which are employed in delimitation case law. A synthesis of the findings reached shows that the accommodation of reallocated private rights is more systematic and effective on land than in the ocean. This demonstrates that reallocated private rights have a greater chance of surviving on land than at sea.

This chapter examines the role of private rights in the process of land and maritime delimitation. To determine this, the study performs a comparative analysis in pairs. Firstly, it compares the effect of private rights in land and maritime delimitation treaties. Then it compares the effect of private rights in land and maritime delimitation rulings. A synthesis of the findings reached shows that the effect of private rights is extensive and significant in land delimitation, but restricted or even absent in maritime delimitation. Hence, the risk of reallocation is greater for offshore private rights in the first place. This asymmetry has important implications for private actors operating in contested waters and for international law in general.

This introduction is designed to give readers an overview of or a refresher on the basics of Australia’s legal system. While many readers will be familiar with these basics, others might not be so this material has been included to inform the specific discussion of law that follows in this book’s substantive chapters.

Common Law and Civil Law can in simplification be regarded as contrary legal systems: on the one hand, case law developed from concrete judicial decisions; on the other hand, statutory law is interpreted by legal scholars. In Germany however, the upcoming obligation to motivate judgments around 1800 initiated a new phase, according to John Dawson “Germany’s Case-Law Revolution". The judicial duty to justify every single decision towards the litigants not only changed the courts’ everyday work, but enabled the whole profession to access detailed information about tried cases. New law reports reflected the jurisdiction of the various regions. From 1847 onwards ‘Seuffert’s Archiv’, the most influential collection, reprinted numerous chosen decisions of the highest regional courts making for a nationwide readership. The use of reasons in Seuffert’s collection and its further utilisation in leading textbooks generated new authorities in legal matters. This insight raises fundamental issues about Germany’s 19th century’s legal history: the unification of national law in a period without a civil code, the relation between abstract law and concrete decisions as well as the overlap of legal practice and scholarship. Surprisingly, until now, scholars have paid little attention to how this worked in practice. How did courts and collections argue with concrete cases decided in the past? In suggesting one approach to answer this question, the paper compares four different versions of the same case from a file to the collection. First of all, a single judge gave his opinion in a report. Secondly, the committee of judges based its reasoned judgment on the report. Thirdly, the reasons were shortened for a regional collection which printed it. Finally, ‘Seuffert’s Archiv’ published parts of this last version once again. The example given here reveals the degree to which prior cases predetermined future courts’ decisions.