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Regulating Jurisdictional Relations Between National and International Courts$
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Yuval Shany

Print publication date: 2007

Print ISBN-13: 9780199211791

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199211791.001.0001

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Conceptualizing the Relations between National and International Courts

Conceptualizing the Relations between National and International Courts

Chapter:
(p.78) 2 Conceptualizing the Relations between National and International Courts
Source:
Regulating Jurisdictional Relations Between National and International Courts
Author(s):

Yuval Shany (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199211791.003.0003

This chapter examines the two main conceptual structures which underlie the opposition to regulating the jurisdictional relations between national and international courts: dualism and hierarchy. According to dualism, national and international courts employ norms deriving from different legal systems and their jurisdictions can never overlap. Moreover, national and international courts often view their respective legal system as normatively superior to the competing legal system, rendering irrelevant any existing overlap. The chapter explains the tension between these traditional explanations of the relations between national and international courts and the growing intertwining of their functions, and introduces a number of theories that offer a more integrative or, at least, nuanced vision of the relationship: monism, dédoublement fonctionnel, the American school of informal socialization, and pluralism. Given the irreconcilably different institutional visions offered by these different theories, the author offers normative systemization as a possible conceptual framework for discussion.

Keywords:   dualism, hierarchy, monism, pluralism, dédoublement fonctionnel, network of courts, international legal system

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