Equity in International Law
22 Isr. L. Rev. 161 (1987-1988)
23 Pages Posted: 11 Oct 2015
Date Written: 1987
Abstract
Each legal system, and perhaps even each individual judge, has to come to grips with the problem of defining the place reserved for equity in positive law - a problem which has both a philosophical and a practical aspect. It is common knowledge that judges often begin by determining what is just in their opinion, and then look for the legal reasoning to support their conclusion. Our problem concerns the situation where the judge cannot find a sufficient and solid basis in positive law to support his "just" or "equitable" conclusion. Looked upon from a somewhat different angle, the problem may be viewed as concerning judicial discretion, or perhaps even the legislative function involved in adjudication. Does minor legislation for the parties to the dispute by the judge contravene the hallowed principle of separation of powers between the legislative and the judicial organs? Does judicial discretion contravene the idea that all law has to be general, certain, stable and predictable?
Keywords: judge, discretion, positive law, justice, philosophical, equity, legislation
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