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Fragmenting Communities of Interpretation and Authority

Published on May 25, 2010        Author: 

Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.

Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL.  Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs.  As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?”  Who has interpretive authority over it?

It’s contested, and always has been.  That is a historical constant, and so in writing the original article I mentioned it but did not follow it up.  But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law.  It is a dynamic of fragmentation.

The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation.  The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority.  But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy.  Read the rest of this entry…

 
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The Rise of International Criminal Law: Roth’s Radicalism

Published on May 24, 2010        Author: 

Editor’s Note: This is the second in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The first posts in the series can be found here.

From where I sit, The Rise of International Criminal Law is firmly within the traditional line of American centrist views of international law.  Your results may differ, of course.  But if this article is not liberal internationalism, of the kind that still so animates the academy; neither is it skepticism as to the very category.  It is pragmatic, cautious, state-centric, and sees the category as both important but deeply fragile.  Fragile, that is, precisely because it proposes to be “law” – yet without being embedded in a social structure which would offer a society, and from there an embedded politics, and from there an embedded judiciary.  It is the universal – but the universal alone, and so weak, fragile, naked, and exposed to the world – simultaneously, however, pontificating on its own universal glory and goodness and future-world-ordering authority.  Universal international law gains independent authority and normative force, paradoxically, only when it is firmly embedded within other structures of politics, society, and authority – that which is found today only in sovereign states.

 It – international law – stands in deep need of shelter by powerful states through their politics.  But protection from what, exactly?  From threatening political winds from outside it?  Yes, certainly.  But not just that – it also needs protection from itself.  Left to its own devices, the “society” of international law, such as it is, believes its own press releases, communiqués, court opinions, and views of publicists, and so threatens to drive itself off a cliff.  International law unchecked tends toward uncontrollable positive feedback cycles, driven these days by its “values” mechanisms, whipped forward by the human rights community, itself driven forward by an uncontrollable positive feedback mechanism of self-reinforcing religious belief, on the one hand, and utter instrumentalizing of international law to those religious ends, on the other. Read the rest of this entry…

 
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The Rise of International Criminal Law: A Response to Brad Roth and Amrita Kapur

Published on May 21, 2010        Author: 

Editor’s Note: This is the first in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Professor Kenneth Anderson is Professor of Law at the Washington College of Law, American University and Research Fellow at the Hoover Institution on War, Revolution and Peace at Stanford University

I am grateful, first, to Brad Roth and Amrita Kapur for their eloquent and carefully considered responses to my EJIL essay, The Rise of International Criminal Law.  It is rare to receive such close reading, on the one hand, and at the same time two such strikingly different comments.  Each succeeds in framing the grand issue in legal, policy, and political terms quite as large as the original article.  Second, my thanks to the EJILTalk! editors for their patient willingness to continue this discussion beyond the article.  My response below is as free-ranging as the original, and goes to places where neither the original article nor the responses run, but which I think provide some context for the article’s observations.  I have broken my response into three separate posts for convenience.

I) A (Thin) Politics, Not a Society

Roth observes that The Rise of International Criminal Law does not adopt a frontal assault on the institutions of ICL.  In this, and in his further observation that the article is one of “unease,” he is entirely correct.   The unease has to do, as Kapur likewise observes, with misgivings about the centrality that ICL has assumed within the whole conception of international justice and, I would emphasize, the whole of what we loosely call the international system.  This unease rests on a still deeper ground of skepticism.  It is one that I have raised in many different settings, but left aside in my article.  It perhaps bears stating now, although I realize it carries the discussion different directions from the original article.

It is that international law, at least in its liberal internationalist incarnation, and particularly ICL as an especially intense version of it, takes as its ground the legitimacy that attaches to domestic systems of justice in settled domestic societies.  ICL lacks this legitimacy, because the international system is not a society in the sense of the legitimacy that attaches to a social system and which gives a society’s mechanisms of law and courts and criminal justice their ability to become internalized in Weber’s classic sense.  At most this international system is a politics, not a society, and only a thin politics at that.  The sense that ICL is the system of criminal law, whether conceived as for that global  “society” or for the rest of the world beyond that “society” of transnational elites that staff it is even more tenuous.

The customary retort is that the crimes at issue are so horrific and so universally reviled that no “thicker” international society is needed for their prosecution and punishment.  We can all agree on genocide, at least.  We do not need a “society” in which to embed and legitimate a legal system if we are talking about those kinds of crimes; universality can be vested in the purely international and transnational, at least for those limited, universally despised crimes.  I have always found this reply singularly unpersuasive.  Read the rest of this entry…

 
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