Distinguishing Creativity from Activism: International Criminal Law and the ‘Legitimacy’ of Judicial Development of the Law

Authored by: Joseph Powderly

The Ashgate Research Companion to International Criminal Law

Print publication date:  May  2013
Online publication date:  March  2016

Print ISBN: 9781409419181
eBook ISBN: 9781315613062
Adobe ISBN: 9781317043157


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A lot of ins, a lot of outs, a lot of what-have-yous. 1 1

J Coen and E Coen, The Big Lebowski (Polygram Filmed Entertainment, Hollywood 1998). Before going any further it seems only fair to provide some semblance of rationale for the not-so-subtle and frequent allusions this chapter makes to the Coen Brothers’ cult existential masterpiece The Big Lebowski. The plot proceeds from an apparently straightforward set of events. The hero, Jeffrey ‘The Dude’ Lebowski has been the victim of an unfortunate case of mistaken identity ultimately resulting in, inter alia, assault and the soiling and theft of a beloved Persian rug. Thus victimised, The Dude has but one goal: reparation for the muchmourned rug. However, despite the modest intentions of his quest, The Dude soon finds himself mired in a series of unforeseen events from a fake kidnapping and blackmail to an encounter with nihilist extremists and a predatory female modern artist. Needless to say, The Dude never receives reparation for his rug, but he has learned a lot about himself and the world around him along the way. In many ways, judges who engage in judicial creativity often find themselves in similar circumstances to The Dude. Their goal, like The Dude’s, is often a modest one, namely, the filling of a gap or lacunae in the law in order to discharge justice. However, if sufficient care is not observed, the attempted attainment of a modest goal can lead to some fairly extreme results and unforeseen consequences. In the end, many creative judges may feel that the outcome may not have been worth the effort. Granted, the allusion is perhaps a little tenuous, but nevertheless The Dude abides.

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