Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we have Sarah Nouwen’s choices.
Sometimes, writing is easier without reading. Skim-reading the most recent work on a topic, one may find sufficient disagreements to pick a fight with. But truly widely reading about a topic, going back several decades, if not centuries, makes one realise how many of one’s arguments have already been made, and much better. Ultimately, of course, it is such wide reading that allows one’s own work to mature. It is also an act of rebellion against the pressures of quantitative assessments of one’s work, and an inspiring source for the scholar’s primary job: to educate, first oneself, and then others.
So, in the spirit of better late than never, this year’s list includes some books that I should have read long ago.
I opened this book to develop a stronger grasp on the international law of self-determination. I closed it with an even broader understanding of everything that self-determination could mean, depending on who interprets it, and who gets to participate in the process of interpretation. Putting her finger on one of the paradoxes of self-determination, Knop shows that those most affected by self-determination are often excluded from the process of its legal interpretation. While this may be the case for many legal norms, it is paradoxical for self-determination, which is essentially concerned with people deciding for themselves.
But the book’s significance goes far beyond self-determination. I’ll use it for teaching classes on interpretation: thought you knew what this text meant? Read Knop and you’ll be surprised in how many ways the same few lines can be understood, depending on one’s world view and what we consider coherent or incoherent.
Anthropologist Rita Kesselring, too, is concerned with participation, both in legal proceedings and in political processes. Her careful and rich ethnography of the Khulumani victim support group—the South African group that became internationally famous for bringing cases against multinationals in US courts for apartheid-era crimes—challenges prevalent theoretical claims about recourse to law leading to depoliticization. Exploring empirically how the use of legal norms changes the social realm, she shows both the appeal and limitations of recourse to legal proceedings to emancipate from victimhood. With its formalised procedures, law can provide a stronger guarantee to be heard and recognised than political processes. At the same time, law’s tendency to individualise goes against victims’ attempts to make experiences social. Connecting careful ethnography with classic theories about bodily suffering, victimhood, law and politics, this book is testament to the importance of anthropology, also for lawyers.
There is so much transitional-justice literature on Africa; there is so little, or, more precisely, so little globally used and cited, from Africa. This collection of essays by key transitional-justice thinkers on the African continent deserves attention across the world. It manages to integrate dominant transitional-justice discourses with African experiences. The chapters cover matters ranging from transitional justice as alien knowledge, narrative and praxis, African models of transitional justice, and the role of ‘traditional’ justice in transitional justice, to the nexus between forced displacement and transitional justice, the role of language in transitional justice and the monitoring and evaluation of transitional justice programmes. The authors both adopt and critique dominant narratives, criticise African and foreign practices alike, and do not shy away from highlighting tensions that some policy circles have tried to define away.
Few people have been as close to negotiations on justice issues in the context of recent armed conflicts as Priscilla Hayner. Her very accessible case studies, ranging from Sierra Leone to Colombia, are rich in empirical material that is otherwise hard to obtain. For as Alex de Waal has observed (p. 179), peace processes are very poorly documented: ‘When a peace process succeeds, mediators or participants may publish their own memoirs. These are useful but inevitably subjective. Any record of the actual proceedings remains locked away. When peace processes fail, usually no documentation at all is made public; sometimes, this is because it is not clear that the processes have failed, the parties and mediator hope that there is a chance of continuing, and they do not want to jeopardize a possible future resumption.’. In this book, Hayner combines her scholarly attitude with insiders’ knowledge. Her analysis reveals that tensions between the pursuit of peace and criminal justice continue to exist, and how mediators deal with them. Based on these experiences, she also provides advice to the Prosecutor of the International Criminal Court.
A sequel to his influential The Last Utopia: Human Rights in History, Moyn takes on some of his critics and expands his history of human rights, now focusing on economic and social rights. The title says it all: he argues that human rights are not enough to deal with the world’s fundamental inequality. Human rights have succeeded in creating a minimum socio-economic threshold below which people shall not fall, but are not bothered by inequality per sé. In Moyn’s terms, they provide a floor of protection against insufficiency, but not a ceiling on inequality. Indeed, dominant economic policies seem to believe that in order to address insufficiency, more inequality may have to be accepted.
In an era in of nationalism and populism, Moyn’s message is all the more important: as he asserts, it is not necessarily the poorest within a state, but those who see themselves stagnate compared to those who benefit from the economic system, that vote in the populist leaders. Moyn’s history does not throw social and economic rights out of the window, but reminds the reader that there once were more ambitious projects of distributive justice, projects that could be revived.
There is another reason to read Moyn: he masters the art of writing. For all of us struggling with composing an introduction, take his apart to see how, immediately in the very first pages, he manages to draw the reader into the issue with which he is concerned.
This is perfect reading for the holidays: it is a text that invites meditation, rather than speed reading; it nourishes the individual, by reminding them of their inexorable connection with all others around them; and, stressing the need to prioritise ‘the other’ in all circumstances, it resonates with thoughts that befit the season.
Levinas defies summarisation. But in a time of America first (and The Netherlands second), Levinas’s work reminds us that western thinking does have a tradition of understanding one’s own humanity as ‘contingent’, as inexorably related to that of each and every other human being (in this sense similar to the African notion of Ubuntu, sometimes translated as ‘I am because I belong’). In doing so, he also gives reason to reconsider understandings of what makes life meaningful: if our own humanity lies in the responsibility for others, we may find it among the most vulnerable, for it is in the visage of the vulnerable that we are likely to encounter the greatest ethical demands. His writings also seem to challenge the lawyerly reflex to ground responsibilities in law, or to translate them into law, and to enforce them through courts. A turn to law often shifts, as Sara Kendall and I have argued elsewhere, the focus from the reciprocal relationship between the self and the one who suffers, to a relationship between a wrongdoer and a victim, both of whom are external to the self. Levinas encourages us to think instead about the question what the encounter with the other, whether a refugee, job-seeker, homeless, disabled, elderly, or in-law, demands of us, directly.
All in all, a perfect text for which to create a moment of solitude during people-packed festive days and to find inspiration for a less selfish and more humane 2019.