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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Political Theory of International Adjudication

Tom Ginsburg

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19 September 2020

Subject(s):
Judicial reasoning — Judicial decisions — Rule of law — Legitimacy

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

1 In 1977, HLA Hart gave a famous lecture entitled ‘American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream’, in which he portrayed American legal thought as caught between two extremes. On the one hand, in a post-legal realist world, jurists had to confront the idea that law was mere policy and politics, without any independent constraining force. In this view, the jurisprudential nightmare of Hart’s title, judges always made the law and never simply found it. On the other hand, there were those who responded to this nightmare by arguing...
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