Philosophical justifications in international criminal law jurisprudence: a systematic content analysis in pursuit of rule of law and institutional legitimacy

[摘要] International criminal law judicial bodies often use philosophy as part of their justificatory narrative. Such use has not yet been systematically analysed nor has the impact thereof on institutional legitimacy been ascertained. Through systematic content analysis, the thesis empirically identified a taxonomy of philosophies used in a selection of international criminal law pronouncements, before evaluating their compliance with a formal rule of law standard. On the Fullerian rule of law adopted, justifications ought to be public, clear and consistent. Through the analysis undertaken natural law, legal positivism, feminism, Third World Approaches to International Law and realism were generally found to be consistently used over the selected juristictions. Inconsistency appeared in conjunction with ethical theories and liberalism. Such inconsistency in judicial output brings the institutions' outcome-based legitimacy into contention. In turn, this pressurises the consent legitimacy afforded to these bodies or, in other words, the international community's perception of whether these judicial bodies are legitimate. The thesis concludes with suggestions on how these philosophical inconsistencies might be understood and addressed to enhance the rule of law in and institutional legitimacy afforded to international criminal law judicial bodies.

[发布机构] University:University of Birmingham;Department:Birmingham Law School

[关键词] B Philosophy. Psychology. Religion;B Philosophy (General)