THE CONCEPT OF A LEGAL DILEMMA

Abstract

This article is based on the monograph (Irresolvable Norm Conflicts in International Law: The Concept of A Legal Dilemma) of Valentin Jeutner pioneering the concept of legal dilemma in the doctrine of international law. Briefly, the concept of a legal dilemma is a theory of irresolvable norm conflicts. The concept of legal dilemma serves as a normative exposition of the international legal states of affairs where the conflict between two legal norms is so fundamental that their adequate resolution through norm conflict resolution techniques of contemporary international law is impossible. In this article, the author conceptualizes legal dilemmas as an unavoidable and irresolvable conflict between norms of international law. The intrinsic nature of legal dilemmas resembles a legal state of superposition where a given conduct is both illegal and legal at the same time. That is, if one norm is favored over the other, the other is necessarily unduly impaired. Upon providing the general legal account of the concept of legal dilemma, the author responds affirmatively to their presence in contemporary international law. Subsequently, the author ventures to demonstrate that various legal devices to accommodate legal dilemmas once they have arisen are unsatisfactory. Then he establishes that judicial institutions – for a multiplicity of different legal and non-legal reasons – do not represent an appropriate forum for dealing with the various substantial problems posed by legal dilemmas. Thus, the author proposes that judicial institutions – instead of deciding the legal dilemmas themselves – must issue dilemmatic declarations when confronted with an irresolvable and unavoidable norm conflict. Dilemmatic declarations communicate that a legal dilemma exists but do not resolve a dilemma in favor of one or the other norm. However, the author warns us that the issuance of dilemmatic declarations must occur only after the most rigorous and careful application of norm conflict resolution and accommodation techniques. Importantly, dilemmatic declarations do not themselves decide the legal dilemmas but delegate the decision-making competence to the archetypal subjects of international law and the authors of the legal dilemmas themselves – the States. In the author's view, the final say over the decision of the legal dilemmas falls precisely to the States due to the inherent epistemological and/or metaphysical difficulties associated with deciding the legal dilemmas. A State’s decision of a dilemma possesses no legal precedential value and after a State has decided the legal dilemma, the judicial institutions should then enforce an unduly impaired norm. Finally, the author posits the merits of dilemmatic legal thinking in the international legal thought, one of which is to enhance the conceptual understanding of international law, transcend the binary representations of norms only as legal and illegal and to enable States to engage with and reflect constructively about the problems the existence of legal dilemmas presuppose.