Reading 2: von Bogdandy and Venzke
von Bogdandy, Armin and Venzke, Ingo (2012). "'In whose name?' An investigation of international courts' public authority and its democratic justification", The European Journal of International Law: 7-41.
In many grand theoretical sketches court judgments are epitomes of sovereign rule. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not expose in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? In other words, how can the rule of international courts be justified in accordance with basic premises of democratic theory?
Why this reading?
von Bogdandy and Venzke have formulated a well-informed and thought provoking analysis of why many now question the normative justifiability of international courts (ICs). Their list of symptoms, diagnosis and prescriptions have received well deserved attention by other scholars, and is often referred to.
Questions for discussion
- The authors list (p. 8) several possible strategies to justify the power of ICs, none of which they accept as sufficient. Is the list exhaustive? Do you agree with the reasons for dismissing the candidates?
- A central argument they make is that international courts make law, a task hitherto placed with legislative bodies which are democratically elected and make law 'in the name of the people.' Therefore, international courts' law making must also occur in a democratic way. Are these premises and argument convincing? Do they hold for ICs accross issue areas?
- The argument refers at times to Habermas' theories of legitimacy and democracy. How much depends on accepting Habermas' theories, and how much of the argument remains even if we replace Habermas' account with other theories of the value of and requirements of democratic rule?