Why international criminal law can and should be conceived with supra-positive law: the non-positivistic nature of international criminal legality

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• dc.contributor.author Pastor Muñoz, Nuria
• dc.date.accessioned 2023-06-06T06:18:50Z
• dc.date.available 2023-06-06T06:18:50Z
• dc.date.issued 2022
• dc.description.abstract International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (lex praevia, scripta, and stricta – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying ex post facto criminal laws. This approach, the relaxation of the concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL.
• dc.description.sponsorship Ministry of Science, Innovation and Universities of Spain [Grant number: PID2020-115863GBI00/MICIN/AEI/https://doi.org/10.13039/51100011033].
• dc.format.mimetype application/pdf
• dc.identifier.citation Pastor Muñoz N. Why international criminal law can and should be conceived with supra-positive law: the non-positivistic nature of international criminal legality. Crim Law Philos. 2023;17(2):381-406. DOI: 10.1007/s11572-022-09628-6
• dc.identifier.doi http://dx.doi.org/10.1007/s11572-022-09628-6
• dc.identifier.issn 1871-9791
• dc.identifier.uri http://hdl.handle.net/10230/57061
• dc.language.iso eng
• dc.publisher Springer
• dc.relation.ispartof Criminal Law and Philosophy. 2023;17(2):381-406.
• dc.relation.projectID info:eu-repo/grantAgreement/ES/2PE/PID2020-115863GB-I00
• dc.rights © The Author(s) 2022. This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/ licenses/by/4.0/
• dc.rights.accessRights info:eu-repo/semantics/openAccess
• dc.rights.uri http://creativecommons.org/ licenses/by/4.0/
• dc.subject.keyword International Criminal Law
• dc.subject.keyword Natural Law
• dc.subject.keyword Legal Ethics
• dc.subject.keyword Legal positivism
• dc.subject.keyword Supra-positive Law
• dc.subject.keyword Principle of Legality
• dc.subject.keyword Radbruch’s Formula
• dc.subject.keyword Duty of obedience
• dc.title Why international criminal law can and should be conceived with supra-positive law: the non-positivistic nature of international criminal legality
• dc.type info:eu-repo/semantics/article
• dc.type.version info:eu-repo/semantics/publishedVersion