Fact-Finding Without Rules: Habermas’s Communicative Rationality as a Framework for Judicial Assessments of Digital Open-Source Information

Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital material, despite the risks of such materials being misinterpreted or misused as a vehicle for disinformation. In the absence of prescriptive regulatory responses, this article argues that Jürgen Habermas’s communicative rationality provides a justifiable framework for the court’s judicial deliberations regarding digital information. Importantly, Habermas emphasizes forming a broad epistemic community to draw specialists into the deliberative process. As the truth-seeking evidentiary function increasingly moves outside of the courtroom, Habermas’s communicative rationality constitutes an inclusive approach capable of inculcating specialized knowledge into judicial deliberations. In this way, communicative rationality can provide a powerful conceptual justification for the judicial exercise of power regarding the emerging phenomenon of digital open-source information.