The Value Question and Legal Doctrine: The Inescapability of Ethics

Abstract

The authors investigate the value question in the context of international criminal law and legal doctrine. One objective is to use the distinction between global imperatives and context-specific characteristics as the basis for an attempt to capture the subtle nuances in the reasoning of different theorists. Another objective is to look at the case of incommunicado detention with a view to distilling those notions of legal reality that inform the position on jus cogens norms. Although some legal doctrines – like the community-centric and integrated approaches – are the contributions of contemporary theorists, the discussion that they are involved in still divides them along the traditional fence markers for legal positivism and natural law theory. In the course of comparing various doctrines, the authors concentrate on a criticism of the community-centric approach for the purpose of illustrating the inescapability of legal ethics and ethics proper as opposed to positive morality and/or law.