Sunday, August 5, 2012

Robinson: A Cosmopolitan Liberal Account of International Criminal Law

Darryl Robinson (Queen's Univ. (Canada) - Law) has posted A Cosmopolitan Liberal Account of International Criminal Law. Here's the abstract:

In this article, I present a framework for evaluating and developing international criminal law (ICL). It seeks to reconcile two prominent approaches -- the liberal critique and the critique of the liberal critique -- to formulate a more careful liberal account suitable for novel questions arising in ICL. I agree that we cannot simply transplant familiar articulations of fundamental principles from national legal systems, because the unusual contexts faced by ICL (such as collective violence, inverted moralities, and criminal states) may confound the assumptions underpinning those articulations. However, this novelty does not mean we can abandon culpability and legality. Instead we must explore what the underlying commitment to the individual might entail in these contexts.

The proposed framework can generate new questions and point to new solutions for current controversies in ICL, such as the principle of legality, command responsibility, or superior orders. As an interesting byproduct, the endeavor of examining criminal law in “abnormal” situations and under alternative forms of human governance can teach us about our theory of the “normal” situations. ICL presents a new set of problems, which may expose unnoticed parameters and subtleties in concepts such as moral choice, fair warning, or authority.