Rules, Games, and the Axiological Foundations of (International) Criminal Law

Abstract

International law has often been seen with scepticism, at least when contrasted against domestic law. International criminal law may suffer the same fate unless we reject a certain tendency to understand the role and functioning of any legal system in reductive and mechanistic terms. This tendency – a remnant from positivism – sees the law as modelled on games, and on their constitutive rules. I examine here a defense of this positivistic, narrow approach by prominent (domestic) criminal law theorists, and suggest reasons why international criminal law, in particular, should avoid it.