The legitimacy of the international criminal law system – normative openness as a legitimizing asset of supranational power

Project management: Prof. Dr. Christoph Burchard

The cluster research project (which only began operationally at the beginning of 2016) sheds light on the legal phenomenon that there is no uniform public justification for the administration of international criminal law in sight. Although it is located in the “space of justifications”, it is characterized by the fluidity, plurality, diversity and particularity of the justifications offered. This is referred to here as the “normative openness” of the international criminal law system. But how should we respond to this? Instead of relying on a uniform justification or focusing on the mere “management” of any conflicts of norms, the following is advocated here: The aforementioned normative openness of the administration of international criminal law is a legitimizing asset of supranational power, because through it the “indeterminacy of rational justification” in a normatively fragmented reality of life can be (better) managed.

Based on the cluster’s research approach, the comparatively young system of international criminal justice (as a reminder: the permanent International Criminal Court only began its work in the early 2000s) was chosen as an instructive illustrative example to examine the formation, stabilization and crisis of a new legal order. In line with the program of research field 3, the competition and also the conflict of different normative frames of reference within a legal order that is not yet normatively closed by path dependencies, uniform pre-understandings or widely shared ideologies were up for debate.

The research project will be conducted using the entire legal research repertoire. Interdisciplinary aspects include the discussion on constitutionalization under international law, social science findings (in particular on the effect of normatively ambiguous regimes) and political philosophy (in particular on dealing with non-ideal justification contexts). A workshop is planned for the end of 2017 at which the key research findings will be presented. The cluster lecture series organized in the summer semester of 2017 with the title “Criminal Justice between Purism and Plurality” is a spin-off of the research project.

The research approach pursued has proven its worth. Descriptively, the term “normative openness” has more unique potential than the hypertrophically used terms “pluralism” or “diversity”. Moreover, it shows that not only international criminal law, but also national criminal law is (always latently) characterized by its normative openness. The decisive factor in assessing normative openness is that in the here and now of a normatively fragmented reality of life, there is little prospect of agreeing on a specific orientation for the administration of criminal justice. Therefore, in the future it will be necessary to find ways and means for free and equal citizens to overcome the axiological irreconcilability of their normative positions in order to legitimately organize the normative plurality and diversity of the (international) criminal justice system.

The central theses of the project were published as:

Burchard, Christoph: “Die normative Offenheit der Strafrechtspflege: Eine beschreibende Annäherung”, in: Saliger et al. (eds.): Festschrift für Ulfrid Neumann, 2017.

The most important events of the research project:

Workshop: Normative Openness – A novel concept to analyze and legitimize International Criminal Justice, Winter 2017.

Lecture: “Openness and Dialogue as a Normative Foundation for the Justification of International Public Authority” (by project member Dusan Backonja), 3rd Seminar of the International Network of Doctoral Studies in Law: The Role of Dialogue in the Law Creation and Law Application Process, University Łódź, Łódź, Poland, March 9, 2017.

Presentation: “The Legitimacy of International Criminal Justice – Normative Openness as a Resource of Legitimacy for International Public Authority” (by project member Dusan Backonja), at the 4th Annual International Criminal Law Workshop The Politics of International Criminal Law, University of Western Australia, Perth, Australia, September 15, 2016.

people in this project:

Project management / contact person

Burchard, Christoph, Prof. Dr.

Project staff

Backonja, Dusan, Dipl.-Jur.

Recchia, Nicola

Welsch, Lea