Reasonable stability vs. radical indeterminacy
The main argument of this article is based on a functional disanalogy, between what I will call ‘international humanity-based law’, constituted by human rights and criminal law, and the domestic rule of law. If we adopt a functionalist approach, the attention has to be focused both on Rule of Law’s...
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| Gepubliceerd in: | URI:https://journals.openedition.org/revus, |
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| Formaat: | Article ou chapitre numérique |
| Taal: | Anglais |
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Revus
2016
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| Online toegang: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Samenvatting: | The main argument of this article is based on a functional disanalogy, between what I will call ‘international humanity-based law’, constituted by human rights and criminal law, and the domestic rule of law. If we adopt a functionalist approach, the attention has to be focused both on Rule of Law’s pragmatical objective – a reasonable stability – and on its means – formalism and legality, for dealing with indeterminacy. Do international key players share such values, embedded in the Rule of Law’s political project? Does humanity-based international law fulfil the requirements of the Rule of Law? The conclusion of this work is that institutions and mechanism to which usually legal scholars refer when stating that a legal order is a Rule of Law, are almost absent in humanity-based international law. That implies that radical indeterminacy is, in humanity issues, a too strong obstacle for achieving the ideal of the Rule of Law. |
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