24 September 2012

International Criminal Legalism

'Judith Shklar on the Philosophy of International Criminal Law' by Samuel Moyn comments that
Judith N. Shklar’s Legalism (1964) is not only an underappreciated classic; it may even stand out as the single most significant reckoning with the politics of international criminal justice ever written. Hannah Arendt’s much more famous Eichmann in Jerusalem, published the year before Shklar’s book, dealt more probingly with the moral issues that arise in the course of such political trials. But if the Nuremberg Trials in particular stood out (in Shklar’s words) as “a great drama” in which “the most fundamental moral and political values were the real personae”, Legalism focuses much more interestingly and excitingly on the second category of concerns (155). Shklar did not ask world-historical questions about Nazism and the nature of evil, and went so far as to claim that the Eichmann trial did “not create any new problems for legal theory” (154-55). Shklar published too early to engage Arendt in Legalism, but later depreciated the achievements of Eichmann in Jerusalem, writing that its author “had nothing very new to say” about “some of the great puzzles raised by the trials of war criminals” because “[l]egal theory was not her forte”. And whether or not she was right, it does seem clear that Shklar’s attention to the politics of international law is now indispensable. 
As charges of genocide and crimes against humanity become a regular part of the contemporary world, inquiring into how a generally stable civilization surprisingly broke down as ordinary men stooped to outrageous offenses unique in the annals of history must cede to a different agenda as processes of criminal accountability routinely and systematically engage a world of repetitious and almost normalized infraction. Put differently, international criminal law is close to becoming a regular — perhaps even banal — feature of global politics. Yet most theoretically-inclined commentators on international criminal justice see themselves as Arendt’s followers, even though she provided no discernible account of the politics of the subject, which become more apparent every day. Which makes it even more confusing that no one has ever seriously explored the way that Shklar mounted her account of international political trials. 
 This essay endeavors simply to present a summary and reconstruction of Shklar’s main jurisprudential insights. In a broad sense, Shklar’s approach is part of a larger family of thought known as legal instrumentalism — a view that treats law, and in this case international criminal law, as a means to an end. I revive it in order to suggest the power of that instrumentalist perspective on international criminal law — although I also investigate the extent to which her own justification of the Nuremberg trials fits what scholars now know about it. Some have claimed that instrumentalism is hegemonic today in legal thought; but if so it is strange to report that it is generally absent in the philosophy of international criminal law. Because Shklar analyzed international justice simply as a vivid exemplary case for her larger goal of reconceiving the philosophy of law generally, it is important to begin with her critique of reigning schools of thought in the name of the legal instrumentalism she favored.
 Moyn concludes that -
The reception of Shklar’s book in the legal academy has been basically nugatory, though it was the most directly legal of anything she ever wrote by far. In international law, it fell on especially deaf ears: it was not reviewed in the American Journal of International Law and in fact has garnered one lone citation in that central organ in nearly five decades since the book’s publication. As for Shklar’s attempt to theorize the value of law in international relations and politics more broadly, it simply came too early, at a time of a wary opposition of formalists in law schools to ‘realists’ in political science departments. The one partial exception to the standoff, the New Haven school of international law, Shklar plausibly rejected for offering what amounted to a naturalism in disguise; as for Hans Morgenthau and other realists, Shklar tartly criticized them too — on the rather interesting grounds that their punctilious insulation of politics from other domains paralleled and even mimicked the positivist insulation of law from morality (92-93, 99, 123-26).  
Loneliness is the fate of the loner: it seems simple to chalk the fate of Legalism up to an originally botched reception in the academic field of its time, in which Shklar staked out an original position in part by dripping scorn on everyone else. In the long run, the supersession of its general perspective by critical legal studies did not help; meanwhile, once international criminal law became a going concern in the last twenty years, and in spite of having been made up from scratch, it rapidly assumed the sort of doctrinalism of other fields of law — a doctrinalism that forbade Shklar’s book much impact, even had people remembered it. (In the now decade-old Journal of International Criminal Justice, the book has likewise been cited once; as for the present journal, her name has never been mentioned.) If Legalism is sometimes acknowledged as a “classic”, it is because it is beloved by an underground cult rather than because the book ever went mainstream — not least with respect to the field of international criminal justice in which it might otherwise be taken as a founding and canonical text. 
But there are reasons to revive it. I have tried to write this essay somewhat in Shklar’s own style, which she acknowledged in her later preface to be controversial because of its “confrontation in the vocabulary of political theory, which is neither abstract nor specialized” (x-xi). She insisted, in her original preface, that while “a polemical and opinionated book”, Legalism was “not meant to be destructive” (vii). But she also claimed in conclusion that political theory “should not strive for novelty”, or at least, that her book merely hoped to be “evocative” (224). The “demand for ‘positive’ ideas for prescription and action”, she added, in an amusing moment few others could sustain, “expresses only the inner needs of those who find the doubting spirit and the tentative mode intolerable” (222). She simply meant her book to offer “honest criticism” as part of “a shared enterprise of argument and counterargument ... It cannot, therefore, end on a categorical note or with a rhetorical flourish” (222). 
Instead of ending on a categorical note myself, I would like to return to one implication of Shklar’s critique of legalism that I claimed eluded her — and that she a fortiori did not conceptualize at the level of international politics. Legalism, I suggested, not only does work but must work as a noble lie: philosophers, and perhaps associated guardians, know it is false but allow its many votaries to proceed as if it were true because only the myth makes their conduct possible. In the international realm, Shklar’s failure to draw this inference from her own argument seems especially glaring. How could a society suffering from an excessively political interpretation of law under the Nazis switch to a more humane and liberal politics by adopting a legalism they simultaneously knew was a myth but adopted purely and self-consciously as a matter of its political utility? It would serve them far better to accept that the rule of law is not only possible but crucial as a bulwark against catastrophe. To tell them the truth — that legalism is not a matter of the natural law that in fact pervaded German thought after the war but a noble lie valuable for its political consequences — might well destroy the very bulwark against evil its propagation as a myth is meant to achieve. Of course, it is a somewhat academic point: as I have suggested, Shklar was wrong to think Nuremberg’s legalism fomented the desirable changes she claimed for it. 
Today, the International Criminal Court, and international criminal law more generally, stand as some of the more aspirational projects there are in a dreary world. Along with international human rights, they successfully elicit the enthusiasm of many lawyers in academia and practice, as well as law students seeking an idealistic outlet for their professional training. Aside from conservatives who stand in a long tradition of hostility towards internationalist endeavors, along with a few empirical political scientists, no one approaches international criminal law as a political enterprise. Its supporters, almost to a man and woman, appear to believe that the best way to advance it is to deny its political essence, as if talking about international criminal law exclusively as extant law would by itself convert passionately held ideals into generally observed realities. So long as no one interested in the topic openly discusses international criminal law as a political matter, assesses its feasible political results, and compares it to actual and possible political alternatives, the project will lack plausibility, especially in the academic world where even socially valuable lies are not supposed to be tolerated. 
One difficulty with legalist myths — whether it is fatal or not is a matter of dispute — is that the people will get wind of the truth. Another, however, is that the mythmakers will not manage to step outside their own storytelling. Judith Shklar’s greatest value for international criminal law, going on fifty years after her book on the subject and more than ten years after her death, is to reckon with “the great paradox” of legalism: it “is an ideology ... too inflexible to recognize the enormous potentialities of legalism as a creative policy, but exhausts itself in intoning traditional pieties and principles which are incapable of realization” (112). At least international criminal law’s guardians should reckon with that paradox. If they showed what legalism, in its internationalist versions, can do, they would provide a more convincing case for it. And if they acknowledged what it cannot, they might well decide to put it in its place, in order to make room for other things.