Equity in International Law

22 Isr. L. Rev. 161 (1987-1988)

23 Pages Posted: 11 Oct 2015

See all articles by Ruth Lapidoth

Ruth Lapidoth

Hebrew University of Jerusalem - Faculty of Law

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

Suggested Citation

Lapidoth, Ruth, Equity in International Law (1987). 22 Isr. L. Rev. 161 (1987-1988), Available at SSRN: https://ssrn.com/abstract=2672190

Ruth Lapidoth (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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