Readings 2016: On Politics and Ethics and Love

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have Jan Klabbers’ selection.

Alice Kaplan, The Collaborator: The Trial and Execution of Robert Brasillach (The University of Chicago Press, 2000)

Aristotle already knew that people are political animals. Yet, he also realized that people are ethical beings, and for him, there was no necessary conflict between the two: the ethically flourishing person was one who was intensely and seriously political. In our days, however, that understanding has all but disappeared, with much political debate collapsing into partisan positions where it is considered more important to keep the ranks closed and emerge victorious over opponents than doing the right thing or somehow finding a decent compromise. Whether on debates within Britain on membership of the EU, whether in US presidential elections, or whether in discussions in the ‘comments’ section on EJIL: Talk!, political debate is rarely genuine these days.

This is one reason why the story of Robert Brasillach is so interesting, and it is told extremely well in Alice Kaplan’s The Collaborator. Brasillach was a young French novelist, strongly drawn to Nazism before and during World War II, and seriously collaborating with the Nazis – so much so, that he would urge them not to forget to send children to the gas chambers as well. Not surprisingly, after the war he was prosecuted and found guilty of collaboration, and sentenced to death. At this point some people started a campaign to commute the death sentence and, again not surprisingly, many on the political left in post-war French refused to sign up.

The surprising thing, however, is that one of the signatories of the petition to commute the death sentence was Albert Camus, who had become famous as a novelist, playwright and a resistance authority during the war, and was politically about as far removed from Brasillach as was humanly possible. There may have been many personal reasons for Camus’ decision to sign the petition (he had a visceral repulsion for the death penalty, e.g.), but the story also suggests something about the connection between ethics and politics that we have lost track of. Camus, here as on other occasions, refused to be a fellow traveller; he made up his own mind, and let his political action be guided not by considerations of electoral or popular support, and not by toeing the party line, but by his own thought –and it is at least possible to argue that what made him such an influential figure was precisely his ethical stance.

Kaplan pays relatively little attention to Camus’ attitude in the matter (although she later wrote the Introduction to Camus’ Algerian Chronicles (2013), where the same blend of ethics and politics comes out: see here for my discussion on this) instead, she writes with empathy, understanding and yet firm judgment the story of Brasillach’s life, how he came to be a Nazi, the relationship between prosecutor and defense lawyer, and what happened after the war. Kaplan’s is a fine story, eminently readable, but it is also more than that: through the lens of focusing on a single individual, she captures an entire nation and its ambivalence towards good and evil, and tells a story that should resonate today.

Andres Rigo Sureda, International Investment Arbitration: Judging under Uncertainty (Cambridge University Press, 2012)

One of the books from which I learned most this year was the short set of Lauterpacht lectures given by Andrés Rigo Sureda a few years ago on bilateral investment treaties. Partly this is, of course, simply because I did not know too much about investment law to begin with, but partly also because of Rigo Sureda’s handling of the topic. His focus rests on the uncertainty of large chunks of investment law, which is as much subject to political considerations as anything else. In doing so, Rigo Sureda (formerly of the World Bank, and hitherto known to me predominantly as the author of one of the classic studies on self-determination) has wise words to say on such topics as interpretation and the triangular legal structure of investment treaties. And he does so with great economy, in less than 150 pages.

Raimond Gaita, A Common Humanity: Thinking about Love and Truth and Justice (Routledge, 2000)

Highly inspirational is Raimond Gaita’s A Common Humanity: Thinking about Love and Truth and Justice. Gaita is an Australian moral philosopher, and his book is a set of meditations on a variety of topics, ranging from genocide to university education and much, much else besides. Gaita is difficult to pigeonhole: he is not a consequentialist (and he has some well-chosen words for his consequentialist compatriot Peter Singer) and is highly critical of Kantian ethics as well, in particular its undergirding rationalism. One of the themes running through the book is that of preciousness: if we all treat each other as precious (rather than as fellow rational beings, or in terms of dignity), then the world might actually become a decent place. And I was particularly pleased to see him remark that inspirational teaching owes something to love: love of the topic, and love of the profession. This is something you cannot achieve with a set of slides and a syllabus of pre-assigned readings, and something you cannot fake by means of adopting a public persona. Gaita does not, sensibly, exclude the possibility that one can be a good teacher without love of the topic, but is skeptical about the possibility of being inspirational without love – and somehow that sounds just about right. Gaita’s book is, in many respects, a bit unorthodox: even as produced it departs from the regular format (smaller than most academic books, almost pocket-sized). It is also, for a tract on moral philosophy, remarkably accessibly written, even if not structured as a classic and systematic study. And note the subtitle, with its comma-less enumeration. Somehow, all this captures the spirit of the book very well: a set of meditations, loosely yet intimately connected, to keep returning to.

Neil Walker, Intimations of Global Law (Cambridge University Press, 2014)

The final academic work on my list this year is Neil Walker’s Intimations of Global Law. The book’s main purpose is to try and make some sense of all the parallel discussions going on involving such concepts and ideas as global constitutionalism, transnational law, global administrative law, and global governance. All have their adherents, but few can meaningfully describe what they mean. Walker’s insightful move now is to take the discussion to a different level of analysis, discussing these different ideas and concepts as manifestations of two broad approaches, (convergence-promoting on the one hand, divergence- accommodating on the other), actually making some sense of the similarities and distinctions between them and often highlighting the politics behind them.

In a sense, Walker’s move – shifting the level of analysis to a higher terrain – is a classic move, and much utilized in critical legal scholarship in order to survey and criticize the terrain underneath. What sets Walker apart though from much critical scholarship is that his is not limited to being an intellectual exercise, pointing out internal contradictions perhaps accompanied by a vague and non-descript plea to change track, but also contains a serious engagement with global law, following the intuition that this is something that will not go away, and that the lawyerly discipline will need to come to terms with if it wishes to continue to play a meaningful role in social relations. And law, so Walker suggests without spelling it out, is too important a cultural artifact to just have it be replaced by something else – it comes (potentially, at any rate) with safeguards (e.g., about participation) that its alternatives lack.

Kees van Beijnum, De offers (De Bezige Bij, 2014)

Bert Röling, the Dutch judge at the Tokyo Tribunal in the late 1940s, must be one of the very few international lawyers to whom novels are devoted (the only other example that immediately comes to mind is F.F. de Martens, the protagonist in Jaan Kross, Professor Martens’ Departure (1984)). He played a small and rather caricatured cameo in one of the classic Dutch novels, W.F. Hermans’ Onder professoren (‘Amongst professors’, published in 1975), but is one of the main characters in Kees van Beijnum’s wonderful De offers (‘The sacrifices’) (thanks to Nico Schrijver for bringing it to my attention). De offers tells the story of a more or less fictional Dutch judge at the Tokyo Tribunal, whose main hobbies include playing tennis and playing the piano, and who otherwise too is nearly indistinguishable from Röling – one of the few main differences I have been able to spot with the real Röling is that the latter taught at Utrecht University before being sent to Tokyo, whereas the fictional judge (Judge Brink) taught at Leiden University – perhaps a cruel joke on the part of the author. (In fact, the story goes that Röling’s contrarian attitude may be partly what cost him the professorship in Leiden, with the Dutch foreign policy establishment disapproving of his behaviour in Tokyo as well as his condemnation of Dutch colonial policies. Hence, he spent most of his academic career at Groningen University, far away from the corridors of power. See further the biographical account written by his son Hugo Röling, De rechter die geen ontzag had (’The irreverent judge’, 2014).)

The book is partly about Brink’s ethical dilemma in global politics: he recognized the political nature of the Tokyo trials, and was reluctant to cooperate and find defendants guilty of crimes against peace which, he felt, had not been criminal yet when the war started. Moreover, he felt that it was too simple to hold Japanese political leaders responsible just for having been government members during the war – at the very least, one should wonder whether they did not actively try to exercise damage control.

But the book is about much, much more. The two other protagonists are Michiko, Judge Brink’s lover with whom he has an extra-marital son, and Michiko’s cousin Hideki, who served in the Japanese army in China and returned as an invalid. Through them, Van Beijnum weaves a story of betrayal and loyalty and love, and passion and opportunism and revenge, touching upon such great political topics as war and peace, decolonization, and reconstruction, but also the microcosmic human aspects. Heartbreaking is the passage where Michiko meets her elderly former neighbor after the war, with both having lost their immediate families and their homes and pretty much everything else, and yet both suggesting that they are the lucky ones. Van Beijnum moreover (and this is a major feat) manages to evoke Japan in his writing style which, at its best, is reminiscent of the great Yasunari Kawabata.

Perhaps most tantalizingly, Van Beijnum suggests that ethical demands are strongly situational and that unity of the virtues (a very Aristotelian point) is oh so difficult to achieve: Judge Brink ends up, one could say, doing justice (however ineffectual) to the accused in Tokyo, but not to Michiko, not to their son, and not to Hideki, and not to his wife and children back in Holland either. There can clearly be considerable ethical tensions between the public and private persona, as Camus’ life also illustrates. But merely toeing the party line is never a solution.