According to the traditional theory of judicial decision-making, legal rules constrain judicial creativity because they entail an objectively correct legal answer. Therefore, even if judges want to engage in judicial legislation they are nonetheless constrained by legal rules. This article argues that this understanding is flawed. First, the selection effect ensures that most cases that reach international courts revolve around uncertain legal rules. Second, various cannons of construction will usually allow judges to ascertain several equally plausible legal rules; judges are likely to select those rules which favor their preferred outcome of the case; and their preferred outcome will be largely based on non-legalistic grounds, such as fairness or specific policy preferences. None of this means that legal rules are worthless. It does mean, however, that the traditional theory of judicial decision-making overrates the importance of legal rules as a possible check on judicial creativity.
Judicial Creativity and Constraint of Legal Rules: Dueling Cannons of International Law,
20 U. Miami Int’l & Comp. L. Rev.
Available at: http://repository.law.miami.edu/umiclr/vol20/iss1/5