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interactional legal theory

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7 - Aesthetic Bias and Legal Legitimacy
Randle C. DeFalco, University of Hawaii, Manoa
Book:

Invisible Atrocities

Published online:

10 March 2022

Print publication:

17 March 2022, pp 228-247
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Summary

This chapter, utilizing an interactional legal theory framework, considers the legal legitimacy implications of international criminal law’s aesthetic biases. This assessment is important for two reasons. First, the need to protect ICL’s legal legitimacy is often presented as a reason why ICL accountability should not be pursued for nontraditional modalities of atrocity commission. Second, in a more general sense, such an examination helps us to understand how unacknowledged biases affect the legal legitimacy of ICL. Through an analysis of how the aesthetic biases of ICL affect adherence to a selection of Fuller’s criteria of legality, this chapter demonstrates that, from an interactional perspective of international lawmaking and legality, rather than protecting the legal legitimacy of ICL, the continuing myopic focus on aesthetically familiar forms of atrocity commission actually impairs ICL’s legitimacy as a putative international legal regime.