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The Role of National Courts in Applying International Humanitarian Law$
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Sharon Weill

Print publication date: 2014

Print ISBN-13: 9780199685424

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685424.001.0001

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The Twilight Zone of Utopia: Judges as Law Developers

The Twilight Zone of Utopia: Judges as Law Developers

Chapter:
(p.157) 4 The Twilight Zone of Utopia: Judges as Law Developers
Source:
The Role of National Courts in Applying International Humanitarian Law
Author(s):

Sharon Weill

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685424.003.0005

This chapter examines the activist role of courts, where national courts develop their own domestic law, without being explicitly entrusted to do so, in order to harmonize it with the requirements of international law. It also discusses the utopian role of courts, in which courts introduce ethical judgments and develop international law in the name of a moral cause. The judicial activism role is analysed using the example of the Garzón case; the utopian role is explored using the example of the Italian Ferrini case.

Keywords:   national courts, judicial activism, Garzon, Ferrini, case law, domestic law, utopian role

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