Chapter 5: The identification of jus cogens norms
This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the proper way to justify a jus cogens proposition, that is to say, a proposition classifying some norm as jus cogens. According to legal positivism, a proposition classifying a norm (N) as jus cogens will have to be justified by showing two things: first, that states generally do not derogate from N, and that they generally do not modify N by means other than the creation of new jus cogens norms; second, that states widely subscribe to the opinion that there is in customary international law an authoritative set of norms by virtue of which no derogations from N are permitted, and modifications of N can be accomplished only by the creation of new jus cogens norms. For legal idealism, a jus cogens proposition excites questions about the efficacy of a norm (N). What has to be shown is that the legal consequences ensuing from having categorised N as jus cogens are necessary to realise some presupposed legal ideal. As the chapter concludes, if a lawyer makes an attempt to provide justification of a jus cogens proposition along these lines, he or she will be facing some very challenging questions. This is so whether the lawyer takes the position of a legal positivist or of a legal idealist, but for different reasons.
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