ABSTRACT
To those with even a passing interest in the revival of international criminal law as a healthy limb of the international legal order, the suggestion that its progressive development has been predominantly the product of concerted creative judicial interpretation and not the conventional, consensual legislative acts of states would most likely elicit little more than a knowing nod and a retort to the effect
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.
