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September 10, 2025Open Access

Transparency as performance: the ‘As Is’ and ‘As If’ worlds of international adjudication

Key Points

Transparency constructs an 'as is' world of adjudication, influencing how decisions are perceived and made.
The article reveals how transparency creates a subjunctive 'as if' world, affecting actors' behavior in legal frameworks.
While transparency is often viewed as legitimizing, it also empowers the very structures it seeks to expose.
By dissecting transparency, the study highlights its dual role in judicial institutions and the nature of power.

Abstract

Abstract This article applies transparency to itself. It asks ‘What is transparency?’, ‘What do we think it means?’, and ‘What are the effects of transparency and transparency discourse beyond what they do and do not reveal?’. Whereas transparency and its instruments are assumed to reveal the ‘as is’ world of international adjudication (what really goes on within judicial institutions, and how and why decisions are taken) this article observes how transparency and its instruments construct that reality. After highlighting the fictions and contingencies of transparency, it explains how transparency creates a subjunctive ‘as if’ world of adjudication, where actors behave ‘as if’ what transparency reveals is true. Through informing behaviour, transparency constructs the ‘as is’ world of adjudication. Whereas in the context of international adjudication the focus is typically on how transparency legitimises power, this article observes how transparency simultaneously empowers and legitimizes the exercise of the power that it creates.

Transparency as performance: the ‘As Is’ and ‘As If’ worlds of international adjudication

Key Points

Abstract

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