Game theory and the legitimacy of international adjudicative bodies

Resumen

Traditional legal approaches assume that a court is legitimate when its decisions are faithful to the text that expresses the mandate for which it was created (i.e. the Constitution, in the case of domestic courts; and the treaty, in the case of international courts). However, studies employing game theory show that judges of international courts cannot always be faithful to this mandate and provide the single right legal answer to the cases brought before them for it would risk the stability of the whole system. In light of these findings, this paper exposes the implications that game theory brings to legal theory, reviews the concept(s) of legitimacy of courts, and sketches the foundations of a new theory that justifies their authority, which provides a normative framework to assess their activity. This new theory asserts that the role of international courts is not (cannot be) to provide the unique right legal answer on a case-to-case basis in an approach that focuses on individual rights, but to advance and sustain a “legitimate state of affairs” (objective dimension of rights approach) that is in line with the normative goals that motivated the creation of the international organization.