Content uploaded by Jochen von Bernstorff
Author content
All content in this area was uploaded by Jochen von Bernstorff on Oct 02, 2018
Content may be subject to copyright.
1!
!
Evasive Courts
A Rhetorical Analysis of Judicial Conflict Avoidance
Professor Dr. Jochen von Bernstorff, LL.M.
Chair of Constitutional Law, Public International Law and Human Rights Law, Eberhard
Karls University, Tübingen
Professor Dr. Olaf Kramer
Professorship for Rhetoric and Science Communication, Eberhard Karls University, Tübingen
Professor Dr. Johannes Saurer, LL.M.
Chair of Public Law, Environmental Law, Infrastructure Law and Comparative Law,
Eberhard Karls University, Tübingen
Professor Dr. Stefan Thomas
Chair of Private Law, Business Law, Competition and Insurance Law, Eberhard Karls
University, Tübingen
2!
!
INTRODUCTION
In the last two decades, one of the pre-eminent research paradigms in the legal
literature on courts was that courts are becoming more and more activist. In international law,
scholars conceptualised an ever more activist ‘global community of courts’.1 In Europe, one
of the most influential approaches starts from the analysis of the European Court of Justice’s
(ECJ)2 seminal judgments in Van Gend en Loos3 and Costa/ENEL4 as foundations of a system
of judicial governance or even a ‘judicial coup d’état’.5 Scholarship assigned a governance
function to the ECJ that was based on the (neo-functional) premise that ‘individual litigants,
national courts and the ECJ’6 were the essential driving force of European integration. The
European Court of Human Rights and its doctrine of ‘evolutive’ interpretation was also
analysed through the paradigm of judicial activism. In German constitutional law, the court
has time and again been criticised for blurring the boundary between the judicial and the
democratic-political process by expanding judicial review.7
However, a closer look into judicial practice seems to challenge this prevailing view as
being overly simplistic: Rather than resorting to judicial activism courts can also be found to
avoid a substantive decision on a legal issue raised in a case. Examples can be found in the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 A.-M. Slaughter, ‘A global community of courts’ (2003) 44 Harvard International Law 191.
2 On constitutionalist narratives and the interaction and evolution of judicialized human rights regimes in Europe
and beyond A. Somek, The Cosmopolitan Constitution (Oxford: Oxford Constitutional Theory, 2014).
Meanwhile a classic on strategic manoeverings of the ECJ J.J.H. Weiler, ‘The Transformation of Europe’ (1991)
100 Yale Law Journal 2403-2483. For a systematic and theoretically reflected analysis of the ECJ’s often
strategic use of precedents M. Jacob, Precedents and Case Based Reasoning in the European Court of Justice:
Unfinished Business (Cambridge: Cambridge University Press, 2014).
3 Case 26/62 Van Gend & Loos v Netherlands [1963] ECR 1.
4 Case 6/64 Flamino Costa v ENEL [1964] ECR 1253.
5 A. Stone Sweet, The Judicial Construction of Europe (Oxford: Oxford University Press, 2004) 1. Id, ‘The
Juridical Coup d’ État and the Problem of Authority’ (2007) 8 German Law Journal 915, 924.
6 W. Mattli and A.-M. Slaughter, ‘Revisiting the European Court of Justice’ (1998) 52 International
Organization 177, 180.
7 C. Möllers, M. Jestaedt, O. Lepsius and C. Schönberger, Das entgrenzte Gericht (Berlin: Suhrkamp Verlag,
2011). On the relatively new role of the UK Supreme Court in this context: J.E.K. Murkens and R. Masterman,
‘The New Constitutional Role of the Judiciary’ (LSE Law, Policy Briefing Paper No. 2, 2014)
at https://ssrn.com/abstract=2482312 or http://dx.doi.org/10.2139/ssrn.2482312 (last accessed 3 July 2018).
3!
!
jurisprudence of the German Federal Constitutional Court on the dissolution of the federal
parliament (Bundestag) and on head scarf bans against public school teachers, or the Kosovo-
Advisory Opinion8 of the International Court of Justice9. In those instances, the courts, while
rendering a decision, eschewed a ruling on the substantive legal issues brought up by the
parties. Also, from the ‘margin of appreciation’ doctrine as endorsed by the European Court
of Human Rights there has evolved, through judicial practice, a complex doctrine of evasion,
which is now established in the Preamble of the Convention.10 While it is not uncommon for
political actors to strategically circumvent intricate problems in the public discourse and to
refrain from definitive statements on dynamic queries and societal problems, such an
approach seems to be at odds with the functional role of the judiciary. Even though legal
scholars often observe a court not to have resolved a legal conflict or to have shied away from
taking a specific contentious decision, there has been so far only very few attempts to engage
in systematic and cross-cutting research on the phenomenon of judicial evasion in domestic,
European, and international law. One of the few general inroads into the topic of judicial
evasion on the international level is part of a recent influential publication on the “backlash
against international courts” dealing with “resilience techniques” and “patterns of avoidance”
in times of political conflicts with strong political actors.11 J. Odermatt in his article on
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 403.
9 On the issue of the ICJ avoiding to take a position on particular questions more generally G. Abi-Saab, ‘The
International Court as a world court’ in V. Lowe and M. Fitzmaurice (eds), Fifty Years of the International Court
of Justice: Essays in Honour of Sir Robert Jenning (Cambridge: Cambridge University Press, 1996) 3-16; H.
Lauterpacht, The Development of International Law by the International Court (London: Stevens, 1958); L.V.
Prott, ‘Avoiding a Decision on the Merits in the International Court of Justice’ (1976) 7 The Sydney Law Review
433.
10 A. Legg, The Margin of Appreciation in International Human Rights Law (Oxford: Oxford University Press,
2012); J. Asche, Die Margin of Appreciation, (Berlin: Springer, 2018).
11 M.R. Madsen, P. Cebulak and M. Wiebusch, ‘Backlash against International Courts: Explaining the Forms and
Patterns of Resistance to International Courts’ (2018) 14 International Journal of Law in Context 5–28, Section
3.2.; J. Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14
International Journal of Law in Context 221–236; on the general issue of independence and legitimacy of
international courts in times of fragmentation G. Ulfstein, ‘International Courts and Judges, Independence,
Interaction and Legitimacy’ (2014) 46 (3) New York University Journal of International Law and Politics 849-
866.
4!
!
patterns of avoidance differentiates between “principled” and “pragmatic” reasons for
avoidance and situates the problem in the context of political questions doctrines.12 He also
differentiates between reasons for judicial avoidance that refer to admissibility questions and
those that relate to the merits of a case. Odermatt does not attempt to develop a taxonomy of
rhetorical strategies of evasion which are being used by courts on all levels of jurisdiction.
The focus on “political” versus “legal” issues in our view is problematic because it is prone to
miss out on the fact that rhetorical evasion strategies can be found to constitute an inherent
element of judicial practice, which cannot be explained by reference to an alleged
political/legal dichotomy.
JUDICIAL REASONING AS AN OBJECT OF RHETORICAL ANALYSIS
Our paper is, therefore, supposed to break new ground in exploring the phenomenon
from a comparative perspective comprising legal methodology as well as classic and modern
rhetorical research. We hold that judicial evasion is only one of numerous fields in which a
turn to rhetoric and adjacent linguistic studies complementing legal methodology can generate
new insights in that it conceives of such phenomena as societal issues rather than a mere legal
challenge.
The paper starts from the assumption that there is a significant body of case-law on
both the national, European and international level that is characterised by strategies of
judicial evasion. Courts for various reasons tend to avoid deciding the substantive legal issues
advanced by the parties to a conflict or put before them as a legal question in advisory-
proceedings. The phenomenon is multifaceted. It can be observed in different legal contexts,
different countries and branches of law. We hypothesize that judicial evasion is a central but
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12 J. Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14 International
Journal of Law in Context 221–236, 224.
5!
!
neglected element of judicial practice which can be detected and categorized by employing
the analytical tools of rhetorical science. This namely involves insights resulting from
rhetorical research on ‘evasion-strategies’ in various forms of human and organizational
communication. Such analytical tools can help, beyond mere legal scrutiny, to better detect
and explain judicial evasion. The central hypothesis of our paper therefore is that courts can
be found to employ a sophisticated tool-kit of classical rhetorical practices in order to evade in
their decision a ruling on focal legal issues of a dispute. What strikes as remarkable is that
despite courts being in the position of an impartial law-applying institution they can at times
be found to rely in their reasoning on rhetorical strategies that are commonly associated with
the role of arguing parties in a dispute.
The cross-jurisdictional set of rhetorical practices, which can be identified, goes well
beyond the emanations of classic Western separation of powers-doctrines of ‘judicial self-
restraint’, ‘political questions’, or the margin of ‘appreciation’.13 As examples of rhetorically
framed judicial reasoning, judicial evasion can overlap with such patterns of classical
constitutional or international law. By using such doctrines courts invoke substantial legal
arguments often based on principles of horizontal or vertical “separation of powers” in order
to justify evasive judgments. Through recurring court practice these arguments have emanated
into elastic doctrines which have been further affirmed by commentaries and legal
scholarship. These “principled” reasons14 for judicial evasion are usually well researched,
and their usefulness as well as application are being vividly debated in legal scholarship.
By contrast, the evasive rhetorical practices explored in this contribution are being
used to cloak judicial evasion rather than to openly justify them normatively or by invoking
specific principles. They can arguably be observed in the practice of various domestic courts,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
13 On these „principled“ strategies: J. Odermatt, ‘Patterns of Avoidance: Political Questions before International
Courts’ (2018) 14 International Journal of Law in Context 221–236.
14 J. Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14 International
Journal of Law in Context 221–236.
6!
!
the ECJ, and the International Court of Justice. Judicial evasion as a rhetorical strategy can be
found within the reasoning on the merits of a case as well as in rulings on the admissibility of
applications or actions. The employment of evasive strategies indicates that courts find
themselves in a situation where their duty of resolving a conflict comes along with a
concomitant struggle to define their own political role in an increasingly complex institutional
heterarchy of executives, parliaments and supra-national organisations.
For the sake of this paper we define judicial evasion as a rhetorical strategy cloaking
that a court foregoes an answer to a legal question raised in a dispute. As a matter of evasion,
versus mere denial of justice, we assert that courts in those instances can be found to employ
various rhetorical techniques in order to cloak that they have strategically avoided to craft a
clear stance. A typical example of strategic judicial evasion, in our understanding, is to
reformulate or interpret the legal issue in an unexpected way, so as to avoid taking a position
on the legal issue as raised by one of the parties. Reinterpreting the question with the aim to
eschew answer is a classical evasion-strategy that in ancient rhetoric is known as immutatio: a
technique of reformulating an issue by leaving out aspects of the question (detraction) and
adding new aspects (adiectio).15
While there are cases where, as a matter of procedural law or substantive law, a court
is not required or even permitted to decide, this is not what we mean by judicial evasion. We
do not refer to cases where a claim was time barred, where an action was inadmissible due to
a lack of standing, or where a legal issue raised by a party was blatantly irrelevant for the case
at hand. Rather we address cases in which the court has refrained from establishing an opinion
on an issue despite this issue being relevant for the outcome of the case.
Identifying cases of judicial evasion can require an analysis of the judicial context and
the history of the previous decisional practice of a court. While a court might argue, in a given
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
15 cf H. Lausberg, D.E. Orton and R.D. Anderson (eds), Handbook of Literary Rhetoric:!A Foundation for
Literary Study (London: Brill, 1998), § 462.4.
7!
!
case, that the law or reasons of judicial expediency prevent a ruling on the contested issue, a
strategy of judicial evasion may, nonetheless, be found if, in previous cases, the same court
did not shy away from dealing with a similar question without invoking such a line of
argumentation. Against this backdrop, judicial evasion might occur when a court ‘invents’
new criteria for the admissibility of an action, or when it defines new procedural requirements
which are not fulfilled in the case at hand, while in previous cases such standards were not
applied, without giving an explanation why it is in this new case that those new criteria must
be observed for the first time.
The aforementioned definition of judicial evasion holds no prejudice for the
underlying motives. They can be highly diverse. It is possible that a court wants to prevent an
institutional conflict, possibly in order to avoid an erosion of its own powers within this
institutional setting. Also, it may be the case that the motif behind a strategy of judicial
evasion is to prevent societal unrest or even upheaval over legislative shortcomings, and to
give the lawmaker an opportunity to amend the laws. Constitutional courts as well as
international courts can be put in a position to decide in situations of political and economic
crisis and turmoil. As a result, societal expectations are more and more projected on judges so
that political pressure on them rises. In such crisis-situations judges may avoid taking
substantive decisions, the consequences of which they cannot anticipate, or to prevent major
conflicts with powerful political or private actors.16 Despite their role as formally independent
institutions, courts operate in complex political settings and may thus be afraid of losing
influence, power, or status. Moreover, in the light of international and transnational law-
making, court decisions may have an effect that goes beyond domestic institutions and
reaches out to foreign constituencies. By the same token, courts on all levels increasingly face
scientific or economic uncertainties. The technical and economical complexity of cases
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
16!See for current tensions in the relationship between international courts and their member states: M.R.
Madsen, P. Cebulak and M. Wiebusch, ‘Backlash against International Courts: Explaining the Forms and
Patterns of Resistance to International Courts’ (2018) 14 International Journal of Law in Context 5–28, Section
3.2.!
8!
!
increases. This is especially of concern for areas such as environmental law or economic
regulation. Technical or economic expertise, however, often fail to give clear advice on
possible effects or long-term consequences of a conduct (such as climate change or stability
of the financial system). Scientific progress can, therefore, in certain branches of the law,
create an institutional uncertainty which may possibly have an intimidating effect on courts.
Our paper does not intend to elaborate, let alone take an ethical judgment, on those
possible motifs for judicial evasion. We merely strive to describe judicial evasion as a legal
and rhetorical phenomenon, so that further research might immerse itself into the analysis of
motifs. The question of whether or not a particular court has a ‘good’ political, institutional,
economic, or moral reason to avoid taking a substantive decision is beyond our reach. As fact
of the matter, the answer usually will lie in the eyes of the beholder. Instead, this contribution
will make a first attempt to identify, analyse, and categorise forms of judicial evasion. We
will proceed in three steps: We will first summarise approaches to understand evasion
strategies in ancient rhetoric and modern linguistic scholarship (I). As a second step, we will
present specific rhetorical strategies of evasion and relate them to court judgements where we
find to be able to identify examples for them (II). In the last section, we attempt to draw
broader conclusions from our findings and contemplate on avenues for further research on
evasive jurisprudence.
TECHNIQUES OF EVASION IN ANCIENT RHETORIC
Rhetoric evolved as a theory and practice of strategic argumentation, especially in
front of a court, in the fifth century BC. The rhetorical challenge in judicial cases is not only
to present a strong argument in a convincing way, but, much more difficult: to turn a weak
9!
!
argument into a strong one (‘ton hēttō logon kreittō poiein’), as Protagoras put it.17 The
perspective taken in the classical rhetorical texts is clearly focused on the lawyer defending a
client, or a prosecutor attacking the defendant, whereas rhetorical theory deals with the judge
primarily as the addressee, or as the focus point of such strategic manoeuvrings. If we
observe, along the lines of our research hypothesis, that the court itself uses such rhetorical
strategies to bring itself in a more favourable position or to avoid a conflict, this strikes as
remarkable. Such finding seems to challenge the traditional view of a court as a decision-
making institution which does not pursue own interests when resolving a conflict and which
should, therefore, not find it expedient or necessary to rely on rhetoric in its own reasoning.
Where such strategic manoeuvrings18 can be found in judgments, it is thereupon called for a
deeper rhetorical analysis in order to detect common argumentative strategies and linguistic
devices used to evade a decision on a controversial issue.
Ancient rhetoric yielded a system of genera causae, implying that there are cases in
which it is easy to defend someone and to find strong arguments to back a position, and other
cases in which it is difficult to produce an argument in favour of a particular position at all,
such as cases which are extremely controversial and precipitate ethical conundrums.19 Where
the orator faces such a case (genus turpe or genus dubium), a possible strategic manoeuvre,
according to Aristotle, is to avoid drawing attention to the controversial issue and instead
moving on to another topic.20 This can be achieved by the use of arguments which lie outside
the case, such as attacking the reputation of the opposing lawyer by associating him with
unethical conduct or other questionable involvements. As already mentioned above, there is a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
17 Aristotle, Rhetoric 1402a23–5 (=DK 80B6b).
18 cf F.H. van Eemeren, Strategic Maneuvering in Argumentative Discourse: Extending the Pragma-Dialectical
Theory of Argumentation (Amsterdam: John Benjamins Publishing, 2010)
19 cf G. Calboli, ‘Genera causum’ in H. Cancik and H. Schneider (eds), Der Neue Pauly - Enzyklopädie der
Antike, Band 5 749-751.
20 cf H. Lausberg, D.E. Orton and R.D. Anderson (eds), Handbook of Literary Rhetoric:!A Foundation for
Literary Study (London: Brill, 1998), §848-851, Aristotle Topics 161a.
10!
!
range of possible reasons for courts to use such techniques of rhetorical evasion. Judicial
evasion is not necessarily driven by a fear of public conflict or the aim to avoid complex
arguments. What can be said, though, is that irrespective of the motifs, judicial evasion is an
effective approach in instances where the court considers that a fully reasoned decision
touching on all substantive legal questions raised by the parties would entail negative effects
for its own position, for other actors, or for the society at large. In order to prevent such
negative implications, judicial evasion can present itself as a loophole.
Given that courts operate under the systemic expectation that relevant substantive
issues raised by the parties will be decided in a reasoned judgement in line with accepted
standards of the legal craft, the bench has an interest not to concede openly that it shied away
from a decision. Only under exceptional circumstances can a court be legally entitled to
decline a decision on a substantive issue. This is the case when the law, as applicable in a
given jurisdiction, does not provide an answer to the legal question brought before the court
(lacunae). Such a constellation of non-licet, however, is rarely given, since most scholars and
practitioners hold the opinion that any legal dispute can be decided by applying classic
interpretation techniques recognised by the legal craft. Even the lack of a specific provision
can therefore be viewed as to constitute a legal rule in that it follows from the law that the
situation is accepted by the legal order without any legal remedies available to the party.
Judicial evasion, as it is of interest in our paper, therefore presupposes that rhetorical
strategies are employed in order to lead the attention of the reader of the judgment away from
central topics that the court was supposed to address. Rhetorically such argumentative moves
have been discussed under the term ‘aversio’21 or, to be more precise, ‘aversio a materia’, ie
turning away from the matter. Aversio a materia is a technique used to move away from a
difficult question and to avoid a decision that might have negative effects for the speaker. In
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
21 H. Lausberg, D.E. Orton and R.D. Anderson (eds), Handbook of Literary Rhetoric:!A Foundation for Literary
Study (London: Brill, 1998), §848-851.
11!
!
Greek rhetoric this same strategy is known under the term ‘apoplanesis’. Henry Peacham in
his 1577 ‘Garden of Rhetoric’ already gave a suitable description of the effects of this
technique:
‘Aversio is a kind of aversion or turning away, and it is when the speaker leadeth away the
mind of his hearer, from the matter propounded or question in hand, which maketh much
against him’.22
Judicial evasion, as described above, can therefore be viewed as line of argumentation
by which the court aims to turn away from a question that might, when addressed directly,
‘make something against it’23, to use Peachman’s words. Moreover, when Peachman’s
statement is looked at from a modern perspective, it can be perceived as to entail a description
of aversion as a psychological phenomenon: From a psychological point of view, aversion
means that the mind of the addressee is turned away from the topic. It is a strategy used to
avoid that attention is paid to critical points and to achieve that attention is rather focused on a
different reality.
So far, we have established that courts might find themselves in a position in which a
majority of judges consider it advantageous or preferable that a substantive legal issue raised
by the parties would not be decided by the court. Moreover, we have argued that courts only
in very exceptional and specific circumstances will openly refuse to decide a case that has
been brought before them in an admissible procedure (non licet), and that in all other cases
they act under a systemic expectation to decide the case at hand, including all relevant legal
issues addressed in it. Therefore, courts in all non-open forms of evasion need to employ
rhetorical devices to turn the reasoning of the judgment away from specific legal questions –
rhetorical devices that help to cover their disinclination to decide. We can now move on to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
22 H. Peacham, The Garden of Eloquence (London: Scolar Press, 1577).
23 In the context of judicial evasion this would mean ‘against’ the interest of the court which is to avoid a clear
ruling on the substantive issue in the given case. As to possible motifs for such an interest, see above our
introduction.
12!
!
identify and differentiate between various evasive strategies. Again, Aristotle, in his doctrine
of argumentation, provides us with a first set of expedient differentiations. For Aristotle
evasion is a process of argumentation that does not provide a valid conclusion to an argument.
In his ‘Topics’ Aristotle also adds an important insight into the internal dynamics of strategies
of communicative evasion, according to which evasion usually involves an objection directed
at one or more aspects of a prior communicative act. He outlines promising techniques of
‘objecting’ which aim at avoiding someone to reach a conclusion in an argument:
It can be done either by demolishing the point on which the falsehood that
comes about depends, or by stating an objection directed against the questioner:
for often when a solution has not as a matter of fact been brought, yet the
questioner is rendered thereby unable to pursue the argument any farther.
Thirdly, one may object to the questions asked: for it may happen that what the
questioner wants does not follow from the questions he has asked because he
has asked them badly, whereas if something additional be granted the
conclusion comes about. If, then, the questioner be unable to pursue his
argument farther, the objection would properly be directed against the
questioner; if he can do so, then it would be against his questions. The fourth
and worst kind of objection is that which is directed to the time allowed for
discussion: for some people bring objections of a kind which would take longer
to answer than the length of the discussion in hand.24
Evasion in Aristotelian rhetoric therefore usually implies an actively communicated
objection, be it against the questioner, be it through strategically misunderstanding and
reinterpreting questions or by objecting to a proposed timing. The intricate reception history
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24 Aristotle, Topics 161a.
13!
!
of Aristotle’s proposed elements of successful evasion strategies has led to a longer list of
techniques or patterns of evasion discussed in ancient rhetoric.
RHETORICAL TECHNIQUES OF EVASION IN JUDICIAL REASONING
We have identified and selected five rhetorical techniques of evasion discussed in
ancient rhetoric with a particular relevance for the field of judicial evasion: (1.) Partly
answering a controversial issue (divisio), (2.) reinterpreting and reframing the issue
(immutatio), (3.) strategically disclosing wrong premises (constitutio translativa), (4.) creating
an alternative case (simulatio), (5.) delaying an answer or decision (retitencia). All these
techniques are based on linguistic devices and argumentative features which will be looked at
more closely in the following. We will go through these five techniques and present their
main features and rationales. Moreover, we will present examples for cases in which they
have been used in seminal court decisions. To illustrate the transnational significance of the
approach, we draw these exemplary cases from courts on all levels of modern law: the
international, the supranational and the national: We analyse cases from the International
Court of Justice, The European Court of Justice and the German Federal Constitutional Court.
Divisio
Divisio is a technique of differentiating a complex question or topic in a way so that it
appears in a positive light. It creates a focus on favourable points and ignores others. Divisio
is a process of isolating a specific question within a more complex question for strategic
reasons. If the orator then does focus on these isolated aspects of a question and scrutinizes on
them, he can easily avoid addressing unfavourable points without appearing as reluctant or
14!
!
unwilling to answer. It is a classical rhetorical technique used in the inventio,25 the phase of
collecting and adopting the arguments of a speech, that is typically used in biased
communication of process parties. Our divisio-example stems from the jurisprudence of the
International Court of Justice, the most important court in the realm of international law.26 As
a “World Court” that is dependent on the acceptance of its jurisdiction by individual states,
and due to its literally “pyrotechnic” portfolio ranging from territorial and economic disputes
to questions of war and peace, the ICJ is prone to now and again avoid substantive decisions
by using rhetorical evasion strategies.
In the Kosovo-advisory opinion of the International Court of Justice, the states
represented in the UN General Assembly in a majority decision had asked the Court to decide
on whether the declaration of independence of Kosovo in 2008 was ‘in accordance with’
international law.27 This request for an advisory opinion of the Court was the attempt of the
states supporting this resolution to clarify from a legal perspective, whether or not the Kosovo
against the explicit will of the Federal Republic of Serbia and Montenegro had a right to break
away from that state. The Court, however, by interpreting the question at the outset in a
reductionist way, excluded the question of a ‘right to secession’ in international law from the
substantive scope of the opinion. It isolated the arguably partial question of whether or not
there was a rule in international law prohibiting declarations of independence and objected to
answering the other part of the question in the following words:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25 cf Cicero, Partitiones oratoriae (54 BC, Berlin: De Gruyter, Ger tr, 2013); L. Montefusco, ‘La funzione della
“partitio” nel discorso oratio’ in A. Pennacini (ed), Studi di retorica oggi in Italia (Bologna: Pitagora Editrice,
1997) 69-85.
26 On the evolution and legal framing of the Court’s function, see A. v. Bogdandy and I. Venzke, In wessen
Namen? Internationale Gerichte in Zeiten globalen Regierens (Berlin: Suhrkamp Insel Verlag, 2014), 156-167;
On the court avoiding specific decisions: L. V. Prott, ‘Avoiding a Decision on the Merits in the International
Court of Justice’ (1976) 8 Sydney Law Review 433.
27 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 403.
15!
!
It follows that the task which the Court is called upon to perform is to
determine whether or not the declaration of independence was adopted in
violation of international law. The Court is not required by the question it
has been asked to take a position on whether international law conferred a
positive entitlement on Kosovo unilaterally to declare its independence or,
a fortiori, on whether international law generally confers an entitlement on
entities situated within a State unilaterally to break away from it.28
[…]
A number of participants in the present proceedings have claimed,
although in almost every instance only as a secondary argument, that the
population of Kosovo has the right to create an independent State either as
a manifestation of a right to self-determination or pursuant to what they
described as a right of ‘remedial secession’ in the face of the situation in
Kosovo.29
The Court considers that it is not necessary to resolve these questions in
the present case. The General Assembly has requested the Court’s opinion
only on whether or not the declaration of independence is in accordance
with international law. Debates regarding the extent of the right of self-
determination and the existence of any right of ‘remedial secession’,
however, concern the right to separate from a State. As the Court has
already noted (see paragraphs 49 to 56 above), and as almost all
participants agreed, that issue is beyond the scope of the question posed by
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 425.
29 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 438.
16!
!
the General Assembly. To answer that question, the Court need only
determine whether the declaration of independence violated either general
international law or the lex specialis created by Security Council resolution
1244 (1999).30
After having isolated the question of the legality of the declaration of independence
irrespective of the question of a right to secession (self-determination) in international law,
the Court comes to the conclusion that the declaration as such was not illegal. Whether or not
there is a rule prohibiting or granting the right of secessionist movements to break away from
a recognized state entity is not dealt with in the reasoning of the Court. As a result of the
majorities’ use of a divisio, the heavily contested issue whether the Kosovo-government
violated international law by leaving the Republic of Serbia and Montenegro against the
explicit will of the latter, is not covered by the Court.
The dissenting judge Bruno Simma,31 though, criticized the majority of judges for
their artificially isolated interpretation of the question and thus for their incomplete answer:
With regard to my first point, I wish to recall the wording of the General Assembly’s
request, which asked whether Kosovo’s declaration of independence was “in
accordance with international law” (Advisory Opinion, para. 1). The Opinion
considers that in order to answer this request, all the Court needs to do is to assess
whether there exists, under international law, a prohibitive rule, thus satisfied that the
lack of a violation of international law entails being in accordance therewith (ibid.,
para. 56). This interpretation, however, does not sit easily with the actual wording of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
30 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 438.
31 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 478.
17!
!
the request, which deliberately does not ask for the existence of either a prohibitive or
permissive rule under international law. Had the General Assembly wished to limit its
request in such a manner, it could easily have chosen a clear formulation to that effect.
The term “in accordance with” is broad by definition.32
To conclude, it can be stated that a court may use the technique of divisio in order to
avoid addressing a particular sensitive or contested issue that has been raised by one of the
parties. By basing the decision on a less problematic aspect of the claim or case at hand and
by dealing with it exhaustively, the reasoning appears to be, and in fact usually is, a diligent
execution of the judicial task with regard to the isolated issue. Even if commentators
recognise that an important element of the substantive question raised has been left
unanswered, it may thus be found more difficult to criticize the court for its evasiveness given
that the judgment as such has been reasoned and delivered in accordance with recognized
standards of the legal craft. The mere extensiveness and depth of the court’s analysis of the
other points creates the impression that the party’s argument has received close scrutiny
despite the decisive issue having been passed over by the court.
Immutatio / Ignoratio elenchi, Fallacy of irrelevant conclusion
A more radical form of evasion is a reformulation of the question so that the court
gives an answer that does not reply to the question raised by the applicant. On a linguistic
level this strategic manoeuvre can be identified by the use of immutatio, ie a technique of
detraction and adiection, which diminishes adverse points and brings in new aspects:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
32 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[2010], ICJ Rep 2010 479.
18!
!
‘Immutatio can alter the individuality of the whole.’33 Of course, immutatio cannot only be
discussed in connection with elocutio, but also in regard to inventio and from an
argumentative perspective it produces a fallacy as the court does present a conclusion that is
irrelevant to the question raised (ignoration elenchi).
As to the rhetorical technique of ‘reformulating the question’, an example can be
found in the jurisprudence of the Court of Justice of the EU (CJEU) on antitrust law in the
Villeroy & Boch-case.
The CJEU is relevant when it comes to the analysis of evasive judicial strategies since
it is a trans-national court which is pinched between strong political forces. While it is
bestowed with the task to monitor and sustain the process of European integration, it is at the
same time in charge with the supervision of the powers exerted by the institutions of the EU,
namely the Commission. The former prominently involves preliminary rulings under Article
267 of the Treaty of the Functioning of the European Union (TFEU), the latter is mainly a
matter dealt with in actions for annulment under Article 263 TFEU against legal acts rendered
by the European institutions. It is therefore upon the CJEU in its jurisprudence to carefully
balance the political interest in safeguarding the legality of actions of the European
institutions without undermining the authority of the EU vis-à-vis the member states, external
actors and the participants on the internal market.34 As to the ambition to the protect the
authority of the European institutions, the Luxembourg courts are sometimes perceived as to
pay a certain amount of judicial deference towards the EU Commission.35 While this
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33 H. Lausberg, D.E. Orton and R.D. Anderson (eds), Handbook of Literary Rhetoric:!A Foundation for Literary
Study (London: Brill, 1998), § 462.4.
34 On the "political questions" doctrine in the jurisprudence of the CJEU: J. Odermatt, ‘Patterns of Avoidance:
Political Questions before International Courts’ (2018) 14 International Journal of Law in Context 221–236,
229-230.
35 A general stance of ‘judicial deference’ to the Commission’s assessments appears to have been introduced in
the Consten and Grundig-judgement, and then confirmed in the Remia/Nutricia-decision, cf I. Forrester,
‘Deference to public authority: A judicial equivalent of cupressus leyland II’ in Studienvereinigung Kartellrecht
e.V. (ed), Kartellrecht in Theorie und Praxis (München: Verlag C.H. Beck 2012) 184; I. Nikolic, ‘Full Judicial
Review of Antitrust Cases after KME: A new Formula of Review?’ (2012) European Competition Law Review
2012 586. Statistics show an increasing restraint of the EU courts to annul Commission decisions and reduce
19!
!
perception is mainly based on the courts’ reluctance to fully review the facts of the case36 and
on the fact that the EU courts exercise an almost unfettered margin of discretion in some
matters of substantive law37 and of procedural law,38 the example to be discussed in the
following reveals that the courts can also be found to employ rhetorical techniques in order to
bypass legal intricacies of a ground of appeal when it comes to the legality of the
Commission’s actions being challenged before the courts.
In the Villeroy & Boch judgment the CJEU employed a line of argumentation to
uphold a decision rendered by the General Court (GC) which had confirmed a fine decision
by the Commission in the bathroom fixtures cartel. There, the EU-Commission had found
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
fines, cf D.M.B Gerard, ‘Breaking the EU Antitrust Enforcement Deadlock: Re-empowering the Courts?’ (2011)
European Law Review 457, 469. For example, a study shows that in 2012 and 2013 the Commission’s overall
success in merger and antitrust appeals in the European courts was 90% (2012) and 77 % (2013), cf H. Vane,
‘The House always wins’ (2014) 17 Global Competition Review 9, 5 et seqq.
36 The EU courts grant the EU Commission a broad margin of discretion concerning complex economic or
technical assessments, cf M. Bronckers and A. Vallery, ‘Fair and Effective Competition Policy in the EU :
Which Role for Authorities and which Role for the Courts after “Menarini”’ (2012) European Competition
Journal 283, 290; C.I. Nagy, ‘EU competition law’s fair trial revolution: much ado about nothing?’ (2016)
European Competition Law Review 232. Moreover, the EU courts do not carry out a full de novo review, and
they generally refuse to substitute their own assessment for the Commission’s decision, cf P.D. Camesasca,
‘Cartel Appeals to the Court of Justice: The Song of the Sirens?’ (2013) in Journal of European Competition
Law & Practice 2013 216; C.I. Nagy, ‘EU competition law’s fair trial revolution: much ado about nothing?’
(2016) European Competition Law Review 232; R. Nazzini, ‘Judicial Review after KME: An Even Stronger
Case for the Reform That Will Never Be’ (2015) European Law Review 2015 490, 494; A. Usai, ‘How switching
towards an adversarial system might make fairness and efficiency bedfellows in cartels enforcement’(2014)
European Competition Law Review 547. While in the KME- and Chalkor-case the GC held that despite of the
Commission’s margin of appreciation in complex economic matters, the EU courts still have broad review
powers, the EU courts do not consider themselves to be obliged to undertake a full review of Commission
decisions.
37 The EU courts grant the Commission discretion regarding the setting of fines so long as these comply with the
Commission’s guidelines. The jurisprudence therefore often declines to interfere with the Commission’s
assessment. The GC generally limits itself to checking the Commission’s decision’s consistency with the Fining
Guidelines (pursuant to Article 23(2)(a) of Regulation NO 1/2003 [2006] OJ C 210/2) without engaging in a
significant proportionality review. Cf I. Forrester, ‘Deference to public authority: A judicial equivalent of
cupressus leyland II’ in Studienvereinigung Kartellrecht e.V (ed), Kartellrecht in Theorie und Praxis (München:
Verlag C.H. Beck 2012) 184; D.M.B Gerard, ‘Breaking the EU Antitrust Enforcement Deadlock: Re-
empowering the Courts?’ (2011) European Law Review 457, 458. Only in rare occasions has the GC reset the
amount of the fine on the basis of its own appraisal deviating from the methodology used in the contested
decision, cf I. Nikolic, ‘Full Judicial Review of Antitrust Cases after KME: A new Formula of Review?’ (2012)
European Competition Law Review 586.
38 Albeit Art. 47 (2) CFR guaranteeing a fundamental right to a fair hearing corresponding to article 6 ECHR,
witnesses are practically never heard before the EU courts. The EU courts assume that they have a discretion
regarding the hearing of witnesses, cf U. Soltesz, ‘Due Process and Judicial Review – Mixed Signals from
Luxembourg in Cartel Cases’ (2012) European Competition Law Review 2012 245. While the GC has broad
powers for gathering evidence, it has not recognized a right of the parties to produce or request evidence cf F.
Castillo de la Torre, ‘Evidence, Proof and Judicial Review in Cartel Cases’ (2009) 32 World Competition 520.
20!
!
Keramag and Villeroy & Boch to have committed an antitrust violation on the French market
among other areas of the EU. As to the French market, though, the allegations were based
solely on an ambiguous statement made by a leniency applicant. No further evidence
corroborated the Commission’s accusation. Both firms challenged the Commission’s decision.
In their actions for annulment before the GC, both applicants put forward that the piece of
evidence relied upon by the Commission for the French market was of insufficient probative
value. As to Keramag, the GC agreed so that the decision was annulled with respect to
France. However, as to Villeroy & Boch the GC held the same piece of evidence to be
sufficiently clear to find a cartel in France. The decision on Villeroy & Boch was upheld.
Thus, in an appeal before the CJEU, Villeroy & Boch raised the plea that the GC had
breached the principle of in dubio pro reo (presumption of innocence). In acquitting Keramag
for lack of evidence and upholding the fine on Villeroy & Boch, the GC had demonstrated that
the sole piece of evidence, on which the allegations had been founded in both instances, was
ambiguous. The probative value of a piece of evidence cannot be sufficient and insufficient at
the same time, so it was argued in the appeal. The legal question to be answered by the CJEU
therefore was how a verdict of a court can reconcile with the in dubio pro reo-principle if the
court has exclusively relied on evidence, which the court itself has considered to be too brittle
to hold liable another alleged perpetrator for the same infringement.
As a matter of judicial evasion, the CJEU rejected this ground of appeal without
crafting an answer to the legal question on the in dubio pro reo-principle. The CJEU initially
recapitulated the question including the in dubio pro reo-part. Its subsequent line of
argumentation, however, led away from this question and never returned to it. Instead, the
court expounded extensively undisputed facts and general legal principles.39 When the CJEU
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39 In Case 625/13 Villeroy & Boch v European Commission [2017] paras 38-40, the CJEU rolls out undisputed
legal principles concerning the scope of judicial review of the CJEU, and it recapitulates some of the facts of the
case which had not been challenged at all before the CJEU. In para 38, for example, the ECJ outlines extensively
that ‘an appeal lies on points of law only’. However, an infringement of the in dubio pro reo principle is a point
of law, and the ECJ does not even argue to the contrary.
21!
!
finally appeared to recap the question in order to craft a conclusion, parts of the initial
question as raised by the applicant were omitted.40 While the applicant had asked whether the
GC judgment reconciled with the in dubio reo principle, the CJEU in para 41 did not mention
the in dubio pro reo-principle any more. Rather, the CJEU stated that the plea was about both
GC judgments being ‘contradictory’. In rephrasing the question like that, the CJEU created
the impression that the applicant’s argument was confined on the mere fact that these two
judgments deviated. However, that was not the ground of appeal as raised by the applicant.
The ground of appeal was about the in dubio pro reo-principle.
Henceforth, the CJEU only elaborated on the reshaped version of the ground of
appeal. The court stated that the mere fact that two judgments deviate in some points did not
call for an annulment. Eventually, the CJEU rejected the ground of appeal in para 45 without
ever coming back to the potential infringement of the in dubio pro reo-principle as addressed
by the applicant.
In conclusion, the CJEU judgment exemplifies all pertinent elements of a rhetorical
strategy of immutatio. Rephrasing the question allows the court to relate its answer to a
question that was designed by the court (‘Is a deviation of two parallel judgments in itself a
sufficient ground for an appeal?’). In answering this question, the court eschews an answer to
the more intricate question as raised by the applicant, which would possibly have revealed a
manifest error made by the GC (‘Can it reconcile with the in dubio pro reo-principle if a court
relies on a piece of evidence which the same court has found insufficient?’).
Constitutio translativa: Attributing wrong premises
Another strategic manoeuvre to evade a question is to plainly deny jurisdiction in a
certain case. The court will then put forward that the whole question was raised under the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40 ibid para 41.
22!
!
incorrect premise that the court has responsibility or jurisdiction to decide. In classical
rhetoric, denying competence of the court is one of the last possibilities for the defendant to
avoid a verdict. A constitutio translativa,41 as it is called, is recommended in rhetorical
literature for cases in which an acquittal would be highly unlikely if the court exerted its
jurisdiction. The defendant might therefore only escape the sanction by denying jurisdiction.
When courts apply such a rhetoric on their own, however, this precipitates serious
implications. Such a strategy might be used by judges as a means of last resort in order to
avoid decisions on the merits of a case that are potentially controversial. In its effects, the
constitutio translativa is a particularly drastic form of judicial evasion since it precludes any
substantive pronouncements of the court on the case.
In the 2016 dispute between the Marshall Islands and the United Kingdom (UK),42 the
Marshall Islands had claimed that the UK had violated its obligations under the Non-
Proliferation Treaty. Under that treaty from 1968 the then existing five nuclear powers had
assumed the obligation to ‘pursue negotiations in good faith on effective measures relating to
cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty
on general and complete disarmament under strict and effective international control.’43 In
return, all other states had committed themselves not to acquire any nuclear weapons in the
future. What the Marshall Islands did in this case was to point to the fact that most nuclear
powers had neither reduced their nuclear arsenals over the course of the last 45 years nor
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
41 cf Cicero, De Inventione, I.6; M.J. Hoppmann, Argumentative Verteidigung: Grundlegung zu einer modernen
Statuslehre (Berlin: Buchverlag Weidner, 2008).
42 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom) [2016] ICJ Rep 2016 833; on the Court avoiding a decision
on the merits in this case more generally A.T. Anghie, ‘Politic, Cautious, and Meticulous: an Introduction to the
Symposium on the Marshall Islands Case’ (2017) 111 AJIL Unbound 62–67; A. Bianchi, ‘Choice and (the
Awareness of) its Consequences: the ICJ’s ‘Structural Bias’ strikes again in the Marshall Islands Case’ (2017)
111 AJIL Unbound 81–87; S. Ranganathan, ‘Nuclear weapons and the Court’ (2017) 111 AJIL Unbound 88–95;
N. Krisch ‘Capitulation in The Hague: The Marshall Islands Cases’ (2017) EJIL Talk! at
https://www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases/ (last accessed 1 March 2018); J.
Odermatt, ‘Patterns of Avoidance: Political Questions before International Courts’ (2018) 14 International
Journal of Law in Context 221–236, 231-232.
43 Treaty on the Non-Proliferation of Nuclear Weapons (729 UN Treaty Series, 161), article VI.
23!
!
launched new initiatives for a complete treaty-ban of nuclear weapons. Given that all five
permanent Security Council members are nuclear powers with growing arsenals and an
apparent disinclination to ban nuclear weapons altogether, a court ruling in favour of the
Marshall Islands would have had dramatic consequences for the NPT regime. It would have
exposed that the deal struck in 1968 between the beatus possidendi and the nuclear ‘have
nots’ had not been honored by the nuclear powers. Such a decision could have destabilised the
NPT-regime and could have led the Court into a serious political confrontation with the five
permanent UN Security Council members.44 Not surprisingly perhaps, the Court held right at
the outset of the handling of this dispute, within its Preliminary Objections, that the case was
inadmissible. In order to achieve a possibility to deny its own jurisdiction, the Court
introduced a new criterion for the admissibility of a case. What was remarkable, though, was
the fact that this new criterion had never been used or even mentioned in its previous case
law. The ICJ in previous decisions had held that in order for an action to be admissible the
case had to be based on a ‘dispute’ that already existed at the time when the case was
submitted to the Court.45 Given that this condition was fulfilled in the case at hand, the Court
created a new ‘subjective’ criterion, according to which the respondent also needed to be
‘aware’ of the dispute, which in the view of the Court the UK had not been at that point in
time:
41. The evidence must show that the parties “hold clearly opposite views” with respect
to the issue brought before the Court (see paragraph 37 above). As reflected in
previous decisions of the Court in which the existence of a dispute was under
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44 Cf. S. Ranganathan, ‘Nuclear weapons and the Court’ (2017) 111 AJIL Unbound 88–95; N. Krisch
‘Capitulation in The Hague: The Marshall Islands Cases’ (2017) EJIL Talk! at
https://www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases/ (last accessed 1 March 2018)
45 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russian Federation) [2011] ICJ Rep 2011 84 para 30; Questions relating to the Obligation to
Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 2012 444 et s, paras 53 et s.
24!
!
consideration, a dispute exists when it is demonstrated, on the basis of the evidence,
that the respondent was aware, or could not have been unaware, that its views were
“positively opposed” by the applicant (…).46
The introduction of the ‘awareness’-criterion was not endorsed by all judges in this
case. The bench was split (eight to eight), and it was only through the casting vote of the ICJ’s
President that the Court could eventually follow this approach in order to reject the case as
inadmissible.47 It was critically remarked among the members of the bench that the reliance of
the Court on this newly created criterion was unprecedented in its own jurisprudence. Judge
Crawford in his dissent addressed the tenuous reasoning of the majority:
6. While the term ‘awareness’ has sometimes been used in other cases in deciding
whether there was a dispute, it has never been stated as a legal requirement, only as a
description of the factual situation […].48
The dissenting opinion underpins the assumption that the introduction of the
‘awareness’-criterion can be perceived as a strategical move by the court. By the creation of
the new criterion the Court puts itself in a position from which it can argue that the whole
legal issue was raised under the incorrect premise that the Court has jurisdiction. This allows
the Court to formally decide the case by rejecting it as inadmissible without, however,
touching upon the highly controversial substantive issues of nuclear disarmament as raised by
the applicant. By strategically employing a constitutio translativa, the Court therefore avoids
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom) [2016] ICJ Rep 2016 850.
47 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom) [2016] ICJ Rep 2016 857 et s.
48 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom) [2016] ICJ Rep 2016 1095.
25!
!
a constellation where it could possibly interfere with international politics in a way that could
have precipitated a serious political confrontation.
The constitutio translativa is a particularly common strategy of judicial evasion.
Courts by way of creating new admissibility-criteria or by making creative use of existing
ones can avoid to deal with the merits of the case entirely. Legal audiences, however, usually
are particularly sceptical when courts in an often long awaited decision on a contested legal
issue use a constitutio translativa to evade the substantive issue in their reasoning. Courts
arguably use this particularly drastic evasive strategy only when the employment of other
rhetorical evasion strategies on the merits appears less convincing or even implausible.
Simulatio: Creating, but not materializing new principles
While even the reformulation of a question still is at least loosely grounded on the
question raised by a party, we also see strategic maneuverings where a court is adding entirely
new content to the discourse, but still ends up with evasion. One phenomenon of such new
content being added is related to the creation of new principles – normative claims of a
general nature that have the quality to alter paradigms and outcome of the relevant discourse,
but do not materialize in the concrete case. This is an extreme form of dodging a question and
evading an unfavorable issue.
There are several possible motives for such a strategic creation of ‘new principles’.
For one, the court could develop a new principle – that appeals to the plaintiff or a certain part
of the audience – to win the support of either or both for the judgment at large. This motive
may apply in constellations where particularly critical reactions to the judgment are expected.
Even if the abstract principle is not (fully) applied to the concrete case, its creation may signal
sensitivity to certain claims out of this critical audience and the relevant social context.
Second, the court could create the principle as an argumentative tool for applications in future
26!
!
cases that may have specific facts. The second motive is related to the first motive to the
extent that it may already spend some relief for the party losing today to know that there
might be a chance of succeeding in the future. Third, the court may want to send a signal to
the party (authority) that is challenged in the court. This signal may be that there is a certain
standard of judicial control over this party (authority) that could hypothetically be activated in
future cases (‘display of torture instruments’). Thus, the signal may have an anticipatory
effect and influence the current practices of the relevant party (authority) already in a
direction sympathetic to the court – without a formal conviction in a judgment on the merits.
An example for the technique of simulatio in legal practice can be found in the jurisprudence
of the German Federal Constitutional Court (FCC). The FCC is widely acknowledged as one
of the most powerful constitutional courts worldwide. According to the German Federal
Constitution – the Basic Law (Grundgesetz, GG) – the FCC does not only have the
competence to null and void statutes of the federal and the state legislatures in Germany, but
also to decide upon a broad range of disputes that emerge from procedural disputes between
the branches of government including the Federal Parliament (Bundestag), the second
chamber of the federal legislature (Bundesrat), the Federal Government (Bundesregierung)
headed by the Federal Chancellor (Bundeskanzler) and the Federal President
(Bundespräsident). Accordingly, the cases brought to the FCC oftentimes have strong
political implications that may motivate the application of rhetorical evasion strategies.
In 1983, the FCC had to decide upon the dissolution of the Bundestag that resulted
from a strategic application of the GG. The case was initiated less than three months after
Federal Chancellor Helmut Kohl had come into office by way of an internal parliamentary
shift of powers in 1982.49 Regularly, the next federal elections would have taken place in
1984. Chancellor Kohl and the parties of his coalition, though, favored early new elections.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
49 Procedure according to article 67 GG (konstruktives Misstrauensvotum).
27!
!
However, the Basic Law did and does not provide for a right to parliamentary self-
dissolution.50
Thus, chancellor Kohl turned to Art. 68 GG as a legal basis to initiate the dissolution
of the German federal parliament. According to Article 68 of the German Grundgesetz, the
Federal President, upon the proposal of the federal chancellor, may dissolve the Bundestag if
a motion of the federal chancellor for a vote of confidence is not supported by the majority of
the members of parliament. In a coordinated strategy to have the motion fail, most members
of Kohl’s own faction in the Bundestag (CDU/CSU) did not vote in favor of the chancellor,
but abstained from the vote. This move insured that the parliamentary opposition reached the
majority, and the vote for confidence failed.
The Federal President dissolved the Bundestag, which led to new elections. In the
public and in legal academia the question of constitutionality was controversially discussed.
Many observers criticized the procedure as a misuse of Art. 68 GG and a circumvention of the
initial decision of the Basic Law against a right to parliamentary self-dissolution and the
rationale behind Art. 68 GG. The dilemma in which the FCC found itself resulted from the
fact that if the court had declared Article 68 to have been misused by chancellor Kohl, this
might have had serious consequences for the political stability in Germany. On the other
hand, the FCC was aware that a clear word on the interpretation of the law was needed and
publicly expected so to prevent Article 68 from becoming an instrument for political
opportunism. In order to resolve the predicament, the FCC applied a line of argumentation
which can be qualified as evasion by simulatio.
In a very broad reading of Art. 68 GG, the FCC added an unwritten requirement to the
text, that is the condition of an ‘instable political situation’.51 Accordingly, a mere tactical
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
50 Historically, the framers of the GG in 1948/1949 did explicitly opt against a parliamentary right to self-
dissolution. This historical decision was informed by negative experiences in the Weimar Democracy. The
denial of right to self-dissolution was seen as an instrument to stabilize democracy by avoiding the instability
that is oftentimes associated with acts of (self-) dissolution of Parliaments (including the looming threat of (self-)
dissolution).
28!
!
voting absent any political instability would not allow for dissolution of parliament. With that,
the FCC developed a relatively strict control standard that even exceeded the constitutional
text. Thus, the FCC paid tribute to the critics and acknowledged its interest in preventing Art.
68 GG from becoming an instrument for political opportunism by confining the scope of
application of this provision to rare cases of crisis. However, for the FCC to avoid declaring
the past events as an infringement of the constitution, it needed to make another
argumentative move. The FCC ruled, along the lines of the simulatio-technique, that the
decision on whether an ‘instable political situation’ was given in a case or not rested upon the
chancellor himself. He was awarded with a broad discretion.52 Since the FCC stated the
chancellor’s assessment of the political situation not to have been evidently outside the scope
of his discretion, the case was resolved without the past events being declared as an
infringement of the constitution.53
To conclude, the FCC judgment demonstrates that a court, when being called to decide
in a highly political situation, may use rhetorical strategies to conflate two divergent goals: to
make a strong political statement and to not create too much of a disturbance for the current
state of things. The FCC achieved that by requiring a situation of political instability for
Article 68 to be invoked and at the same time avoiding a ruling on the case in that it pawned
off the decision on whether the situation was politically instable or not on the chancellor.
Playing for time / Reticentia
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51 Bundesverfassungsgericht, judgment of 16 February 1983, BVerfGE 62, 42 et s.
52 For an overview of the doctrine see T. Herbst, ‘Die auflösungsgerichtete Vertrauensfrage‘ (2006) 45 Der Staat
45-82.
53 The course of action of Federal chancellor Kohl in 1982 served as a model for Federal chancellor Schröder
(SPD) in 2005. For a second time, the FCC decided upon the strategic application of Art. 68 GG and the motion
for a vote of confidence in order to achieve the dissolution of the Bundestag. Again, the FCC upheld the
dissolution decision of the Federal President, see Bundesverfassungsgericht, judgment of 25 August 2005,
BVerfGE 114, 121 with a noteworthy dissenting opinion by Judge Lübbe-Wolff, BVerfGE 114, 121, 182 ff.
29!
!
Playing for time is a powerful strategy to evade a question. On a linguistic level it
means to fall into silence (reticentia). Intentional silence can be qualified as a linguistic
device. It is traditionally considered as a strategy that is used ‘based on a conflict between the
content of the omitted utterance and an opposing force that rejects the content of the
utterance’.54 Playing for time can become relevant where the speaker is confronted with an
intricate question the answer to which could precipitate serious opposition or conflict. This
can be the case where the answer would be considered provocative by large parts of the public
opinion or where religious beliefs could be affected. Against this background, reticentia is a
rhetorical strategy which can be effective when it comes to the protection of the reputation of
a speaker in a case that poses ethical predicaments (genus turpe).
The technique of reticentia is underlying the judgment of the German FCC in the case
known as Head scarf I of 2003.55 The case was decided upon the constitutional complaint of
Fereshda Ludin, a female school teacher by training. Ms. Ludin was born in Afghanistan in
1972, but had lived in Germany since 1987 and had become a German citizen since. Ms.
Ludin is of muslim faith. After graduation she applied for a position as school teacher in a
state school in Baden-Württemberg, but insisted on wearing the head scarf in the class room.
As a consequence, the competent state school authority in the Land Baden-Württemberg
refused the appointment of Ms. Ludin, which she challenged in the courts as violation of her
fundamental right to religious freedom.
Doctrinally, the case presented a fundamental challenge to German constitutional law.
There was a multi-dimensional constitutional law conflict at stake that involved not only the
fundamental right to religious freedom of Ms. Ludin, but also the negative right to religious
freedom of the pupils, the rights of parents, the constitutional principle of religious neutrality
of the state and the constitutional duty of the state to organize the system of school education.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54 H. Lausberg, D.E. Orton and R.D. Anderson (eds), Handbook of Literary Rhetoric:!A Foundation for Literary
Study (London: Brill, 1998), § 888.
55 Bundesverfassungsgericht, judgment of 24 September 2003, BVerfGE 108, 282.
30!
!
Moreover, the case raised the question to what extent the constitutional doctrines on religious
freedom had to be adjusted to the changing role of religion in German society. Traditionally,
the FCC held a very broad interpretation of religious freedom extending to all religiously
motivated activities of daily life. The doctrine originates, however, from the 1960s – when
90% of the German population belonged to one of the Christian confessions, that were
undisputed powerful social forces.56 In contrast, the German society of the 21st Century is
marked by religious pluralism with a multitude of additional religions being present with the
Muslim faith as the quantitatively by far most important non-Christian religion.
The challenge of changing attitudes towards religion in the sphere of public schools,
though, was not entirely new to the FCC. Only a few years earlier, in 1995, the FCC had
decided the crucifix case, in which atheist parents and their children had challenged a
Bavarian statute allowing crucifixes in classrooms.57 Then, the FCC had taken on a decidedly
activist role and smashed the state statute in a balancing act as a violation of the negative
religious freedom of the parents. However, the crucifix-judgment sparked a massive public
outcry of opponents including several important politicians, especially from the governing
party in Bavaria, the Christlich-Soziale Union (CSU).58 The social acceptance of the judgment
was seriously in question, maybe more so than at any point earlier in the history of the FCC.
In the crucifix-context, the problem of the countermajoritarian difficulty – that is usually not
much of an issue in Germany – all of a sudden was very present.
The approach of the FCC in Head scarf I stands in stark contrast to the crucifix-
judgment. In Head scarf I, the FCC does not engage in substance with the constitutional
rights conflict at stake in a very deep way at all. Rather, the court evades from a substantial
decision. As an explanation, the FCC invokes an institutional argument and holds that it was
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56 Bundesverfassungsgericht, order of 16 October 1968, BVerfGE 24, 236 – Lumpensammler.
57 Bundesverfassungsgericht, order of 16 of 16 May 1995, BVerfGE 93, 1 – Kruzifix.
58 For the account of then-Judge at the Federal Constitutional Court Dieter Grimm of the events see D. Grimm,
„Ich bin ein Freund der Verfassung“ Wissenschaftsbiographisches Interview von O. Lepsius, Ch. Waldhoff und
M. Roßbach mit D. Grimm (Tübingen: Mohr Siebeck, 2017) 146 et s.
31!
!
for the (democratically elected) (state) legislature to decide. As a result, Ms. Ludin won the
actual 2003 case, for a fitting statute on a head scarf ban was missing. However, the FCC had
at least implicitly acknowledged the right of the (state) legislature for the statutory enactment
of a head scarf ban, so that the future employment of Ms. Ludin in the German school system
was far from guaranteed, should she insist on wearing the scarf.
With the referral of the substantial decision to the (state) legislature, the FCC evaded
the substantial question at stake by playing for time (reticentia). As in the definition of
reticentia in rhetoric scholarship, the argumentative playing for time could well be explained
by a fear for public opposition to the judgment and the struggle not to endanger public
reputation (as the immediate example of public opposition against the crucifix-judgment in
1995 and the delegitimizing dimension presumably still was a very present experience to the
judges).
The immediate academic reviews on Head scarf I were very clear about the evasive
character. ‘The FCC denied to clarify what the law is’59 or ‘Karlsruhe locuta, causa non
finita’60 some commentators said.
‘Playing for time’ means – as a rhetorical figure – that the speaker postpones the answer
to avoid being attacked in the present context. However, the question might arise again further
down the road so that reticentia will not necessarily terminate a conflict. That can also be seen
in the legal head scarf debate. After the state legislatures in various German states had
fulfilled the legislative duty proposed in Head scarf I and had enacted new statutes on head
scarf bans, these new provisions were again challenged in court. The substantial question
returned to the FCC. In 2013, two female school teachers with Turkish origins challenged one
of the newly enacted head scarf bans with a constitutional complaint to the FCC. This time,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
59 K.-H. Kästner, ‘Verweigerung einer verfassungsrichterlichen Klärung der Rechtslage‘ (2003) in
Juristenzeitung 1178.
60 J. Ipsen, ‘Karlsruhe locuta, causa non finita - Das BVerfG im so genannten „Kopftuch-Streit” ‘ (2003) in Neue
Zeitschrift für Verwaltungsrecht 1210 et ss.
32!
!
the FCC – sitting in a different composition of judges61 – did not evade, but argued and
decided on the merits – in favor of the plaintiffs.62 The Head scarf II-judgment of 2015
immediately raised significant critique in the public and in legal scholarship which cannot be
discussed in detail here.63 It can be said, however, that in retrospect it makes the evasive
character of Head scarf I even clearer. To conclude, the line of argument of the FCC in the
first Head scarf case is a telling example for the use of reticentia as a technique of judicial
evasion from a substantial judgment.
CONCLUSION
The aim of this paper was to add a new intra- and interdisciplinary perspective to the
immense literature on judicial decision-making. We have focused primarily on identifying
five rhetorical evasion strategies in the judicial reasoning of three different courts, one
domestic, one regional and one international. Analysed judgments can only provide
exemplary evidence for the existence of judicial evasion strategies. We assume, however, that
the employment of evasion strategies from this non-comprehensive list of rhetorical
manoeuvres could potentially be identified in the practice of all courts and tribunals and in all
branches of the law. Through the help of rhetorical science and linguistic literature it was
possible to analyse in more depth how judicial evasion works and to describe recurring
patterns of evasion. By way of conclusion, three general questions need to addressed: Why is
judicial evasion a common and relatively accepted practice of courts and tribunals? What are
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61 According to the rules of internal allocation of cases in Head scarf I the case was assigned to the 2nd Senate, in
Head scarf II to the 1st Senate of the FCC.
62 BVerfG, judgment of 27 January 2015, BVerfGE 138, 296.
63 See M. Hong, ‘Two Tales of Two Courts: zum Kopftuch-Beschluss und dem „horror pleni“’,
(Verfassungsblog, 2015) at http://www.verfassungs- blog.de/two-tales-of-two-courts-zum-kopftuch-beschluss-
und-dem-horror-pleni (last accessed 3 July 2018).
33!
!
structural reasons for judicial evasiveness? And does judicial evasion nonetheless bear
inherent and generalizable risks for the judicial function?
As to the question of acceptance, insights from linguistics again help us to understand why
judicial evasion can be a successful communicative strategy of a court. In interpersonal
communication, dodging a question and evading unfavourable arguments generally is a highly
effective communicative strategy as Todd Rogers showed in his study ‘The Artful Dodger:
Answering the Wrong question in the Right Way’:
We might expect that when people dodge a question by answering a different
question, listeners would both notice the dodge and rate the dodger negatively.
To the contrary, we found that listeners engaged in their default goal of socially
evaluating speakers did not rate speakers poorly when they dodged a question
by answering a similar question – a lack of disapproval that went hand-in-hand
with their failure to detect that the speaker had dodged. We proposed, and
offered evidence in support of, two key factors in dodge detection: the
attentional goal of the listener, and the similarity of the answer to the actual
question.64
Evading an argument is often unrecognized by the audience since rhetorical research
indicates that while the audience expects the challenged party to render an answer, it is of
lesser relevance for the audience whether the answer fully reflects the question which was
asked. The same is true for whether the answer is correct or wrong. What is important for the
audience to perceive the challenged speaker as a powerful orator is that the orator reacts. It is
of lesser importance, though, for the impression of a powerful reply whether the answer is
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64 T. Rogers, ‘The Artful Dodger: Answering the Wrong question in the Right Way’ (2011) in 17 Journal of
Experimental Psychology 139, 145.
34!
!
thorough or whether the speaker merely dodges the question. It was Aristotle who already had
the intuition that it is much easier to convince an audience if any reason is given than if no
reason is given at all.65
As to the second question of structural and generalizable reasons for judicial evasion,
we can infer from the cases analysed above that in all instances the political or economic
stakes were high, and any non-evasive judgments could potentially have led to serious
confrontation with strong political actors or to an external or internal institutional crisis. A
structural reason for judicial evasion thus can be strong institutional conflicts and a high
degree of political pressure from powerful actors on the court. We can thus assume that a high
frequency of evasive judgments in a particular field of law indicates that the respective courts
find themselves in a conflictual- and high-pressure situation.66 We can also infer that lower
courts are generally less likely to use evasive strategies because the pressure is less high if a
court knows that appeal structures will lead to further and ultimately binding decisions on the
case. Mitigation of a potential or developing institutional crisis can be an important motive for
judicial evasion, which can be demonstrated in the Marshall Islands ICJ-Case and the
Dissolution of Parliament FCC-Case. But courts can also be inclined to use evasive strategies
to mitigate an internal conflict between the judges in an attempt to find a common position
acceptable to all- or at least a considerable majority of judges.
The third question to address here concerns possible risks for the judicial function. Our
findings might pave ground for further investigations into structural reasons of the
phenomenon of judicial evasion. An awareness for strategies of judicial evasion can help to
identify structural conflicts of interests that have arisen in a given case. Such conflicts might
have thrusted the court into a decisional conflict from which to escape a strategy of judicial
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65 Cf. Aristotle, Topics, 175 a–b.
66 More generally on „resilience strategies“: M.R. Madsen, P. Cebulak and M. Wiebusch, ‘Backlash against
International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14
International Journal of Law in Context 5–28, Section 3.2.
35!
!
evasion was chosen. An awareness for these argumentative manoeuvrings will thusly
contribute to a better understanding of the reasons for such conflicts and to reflect upon
remedies. Despite striving to increase the awareness for strategies of judicial evasion, we
would be misunderstood if our findings were interpreted as legal or ethical criticism of this
phenomenon. By describing the phenomenon, we want to contribute to its understanding. It is
not our purpose, though, to judge over it. In fact, we still doubt if it is expedient to classify
judicial evasion as per se good or bad. Rather, evasive strategies might serve illicit political
opportunism in one case, while legitimately paying tribute to societal or institutional conflicts
and crisis-situations in another. Judicial evasion is therefore a highly ambivalent phenomenon.
A final observation relates to generalisable risks for the judicial function that come
with the use of evasive strategies. Judicial evasion may be necessary in certain instances to
mitigate conflicts and a dawning crisis but it also always means a partial denial of the central
function of the court, to decide a disputed legal issue brought before it. By doing so the court
leaves a particular legal question unanswered. The then inevitably persisting legal insecurity
might have positive effects outside the legal system or short-term advantages for the judges.
From an internal perspective, however, it will always be an unsatisfactory solution. A court
using evasive strategies thus ultimately bears the risk of promoting its own institutional
irrelevance. To deny its role as a functional centre of the legal system that clarifies disputed
substantive legal issues through exercising the full authority given to it by the legal system
may damage the reputation of a court. It might in the long run be conceived as a judicial
institution that, whenever the stakes are high, will give in to political opportunism instead of
providing the answers to the legal questions raised before it. Then why bother asking in the
first place?