Fall 2016 (30.3) Feature

Should International Courts Use Public Reason?

Is public reason an appropriate ideal for international courts? Since the early 1990s various political philosophers and legal scholars have argued that supreme courts should “use public reason” or abide by an “ideal of public reason.” More recently, scholars such as Wojciech Sadurski, Mattias Kumm, and Ernst-Ulrich Petersmann have also applied the concept to discussions about international courts and tribunals (ICs), and argued that some of these significantly enhance their legitimacy through public reason. But what can be the content of a standard of public reason for an IC? And how can public reason enhance these courts and tribunals’ normative legitimacy?

The answers to the above questions hinge largely on the exact meaning of the concept of “public reason” and what it means for a court to “use public reason,” “appeal to public reason,” or “abide by an ideal of public reason.” This article seeks to make three contributions. The first section provides a clarification of the range of conceptions, or ideas and ideals, referred to as public reason in the dominant and broadly Rawlsian tradition. This initial delimitation opens up to a more focused discussion of how public reason may be important for ICs. The second section presents properties and features of ICs that make public reason relevant for their normative legitimacy. The new type of ICs that have emerged since the end of the cold war face legitimacy problems that cannot be satisfactorily addressed by reference to state consent, the traditional source of IC legitimacy. I argue that although many aspects of IC legitimacy lie beyond the courts’ control, a properly construed ideal of public reason offers a way in which ICs themselves can address serious legitimacy concerns raised against them. The third section then sketches an ideal of public reason for ICs that suggests guidelines and principles to limit the discretion of judges when reasoning about morally and politically contentious issues. This ideal is designed to address a particular legitimacy concern raised against many new ICs, namely, that they engage in judicial activism, passing judgments on these contentious issues without being sufficiently authorized and accountable. The final section of the article compares and contrasts the proposed account of public reason to other adjudicative ideals, both from the general adjudicative accounts of Ronald Dworkin and Cass Sunstein, and the more ambitious and cosmopolitan accounts of public reason for ICs offered by the legal scholars Kumm, Sadurski, and Petersmann.

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