Furthermore the anticipated effect in the context of the formation of normative orders is that the participants identify and acknowledge - in principle without coercion and in a way "by themselves" - rules of law as reasons for action. Ethical standards, political participation or a rational discourse can certainly benefit the actual acknowledgement necessary for the legitimacy of law but they cannot substitute for it. In philosophy there is a distinction between second-personal and third-personal reasons: the former ones refer to a presupposed authority of a participant and the actual reciprocal recognition of the participants, the latter ones refer to principles independent from the participants. Recent inquiries in the field of practical philosophy by proponents such as Stephen Darwall also argue that the concepts of human dignity and autonomy - oftentimes used as candidates for possible universal principles - are irreducibly second personal and in general cannot be substituted by third-personal reasoning.
Legal relationships with actual acknowledgement by the participants shall for now be called First Order Law. At the same time one has to recognize that he cannot presuppose the actual acknowledgement of all participants regarding all possible legal relationships and that law as a Second Order Law also applies to those not participating or only participating through coercion, albeit then noting a deficit of legitimacy in this Second Order Law. Therefore the legitimacy of law shall not be treated as a universal concept but as a quality of a social practice where the question is not if a legal rule is legitimate or not but to what extent it is legitimate and to what extent it is acknowledged by the participants.
Thus international criminal law has to be treated - though of course not solely - as Second Order Law. Principles in established legal orders as for example the rule of law have in parts yet to come to existence and international criminal law cannot simply presuppose those. But this also shows future possibilities for an international law. While this can explain why actual acknowledgement is of special importance in international law, because it in parts lacks a stable social practice, it also does not require it to be in a certain sense "universally" acknowledged. From the here stated point of view this requirement cannot be universally fulfilled.
This thesis on a theory of the legitimacy of law as introduced shall be examined with reasoning of philosophical pragmatism and debating fundamentals of the theory of law while it also shall be examined in how far it can be applied practically to the international criminal law.
