The Legitimate Authority of International Courts and Its Limits: A Challenge to Raz's Service Conception?
Legal Authority Beyond the State; P. Capps and H. Palmer Olsen, eds. Cambridge, Cambridge University Press, 2018, 188-205
20 Pages Posted: 25 Apr 2017 Last revised: 28 Mar 2018
Date Written: April 23, 2017
Very public challenges to international courts (ICs) by state governments, legislatures, domestic or international courts, corporations, investors or civil society groups are often draped in terms of ‘legitimacy’. The challenges provoke several questions. Why should such ‘compliance constituencies’ defer to ICs’ judgments at all? More precisely: when do ICs’ judgments give such constituencies reason to act differently than they would otherwise – and when do they not? The present contribution argues that states’ disobedience may be justified due to the substantive contents of the particular ruling by an IC. Section 1 provides a brief sketch of Raz’s ‘Service account’ of legitimacy, and addresses some criticisms relevant to our concerns. Section 2 brings this account to bear on ICs, and lays out some of its distinguishing features by comparing it to the influential accounts of Daniel Bodansky and Yuval Shany. Section 3 turns to consider how this account accommodates and even justifies cases of disobedience against ICs.
Keywords: international courts, legitimacy, Raz, Rawls, disobedience
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