14 Dec Justice as Message Symposium: Message from the Author
[Carsten Stahn is a Professor of International Criminal Law and Global Justice at Leiden Law School, Programme Director of the Grotius Centre (The Hague) and author of Justice as Message: Expressivist Foundations of International Law.]
Blogs play an essential role in discussing scholarship. With more books being published each year, it is difficult for a general readership to keep track of publications or to dive deeply into them. I am very grateful to the excellent team at Opinio Juris, including the wonderful Kevin Heller, Jessica Dorsey and Priya Pillai, for organizing and hosting this symposium. I am delighted that such a fantastic team of commentators has agreed to contribute, including new voices and authors who have shaped the field or inspired the very idea of this book.
Justice as Message started originally as a project about justifications of international criminal justice, which was part of habilitation process at Humboldt University’s Faculty of Law. It was gradually trimmed down to its core, namely an explanation of the various ways in which norms, institutions and agents convey social meaning and speak or perform law. Expressivist theories have been invoked to explain the function of trials or the justification of punishment since early days of international criminal justice. However, I felt that there was more to it than just bits and pieces. The writing process was inspired by exciting new lines of scholarship in recent years on the role of narratives and semantics, justice and emotion, symbolism and aesthetics or the sociology of international criminal justice, just to name a few. The more I read the more I discovered that expressivism opens a new lens on many foundational aspects of the field. I would like to use this introductory post to introduce the main line of argument and some core ideas.
My main argument is that expression and communication is not only an inherent part of the punitive functions of international criminal justice, but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures and repair of harm. Rightly understood, expressivism is thus not a justification of punishment on its own, but rather a justice theory, which stresses the communicative virtues of the justice process and explains how justice is produced. It is more about accountability, rather than justification of punitive sanction. The justification of punishment itself is grounded in a combination of preventive, retributive and transformative rationales.
The normative starting point is a changing understanding of the nature of international criminal justice itself. As suggested in socio-legal scholarship and reflexive sociology (e.g., Pierre Bourdieu), international criminal justice is not only a normative system, composed of legal norms, rules and principles, but a field that defines itself through specific codes, rituals and professional practices (Frédéric Mégret). The traditional objection that international criminal law lacks a normative foundation due to the absence of an international society and a proper doctrinal system (e.g., Georg Schwarzenberger) has lost much of its normative force. Modern theories accept that international criminal law can exist without a monopoly of power at the international level or a universal legislator or Court (Darryl Robinson). Legal practices are partly an attempt to create an international society.
As I have tried to show in a chapter, that was ultimately removed from the book, this understanding sheds a novel light on theories related to the justification of international criminal justice, namely (i) consent-based theories (delegation, social contract), which rely on source of authority, (ii) process-based and consequentialist justifications, which link justifications to agency of justice or intended effects, and (iii) expressive theories which seek to legitimize justice through norm expression or discursive relations. All three approaches address partly different elements of justification. Consent-based theories provide legal authority, while consequentialist and expressivist theories are more closely linked to moral justification. None of the three theories is sufficient as such. They must rather be seen in context with each other. Building on relational theory (e.g. Adil Haque), I argue that justification emerges in and through agent-stakeholder relationships, i.e. relations between offenders, victims, states, affected communities and global society.
In existing discourse, expressivism has been mostly invoked to explain rationales of punishment. But its role is much broader. It is a way to make sense of international criminal justice as a justice project (Barrie Sander). The concept has its origins in the sociology of law (e.g., Emile Durkheim). It was developed in legal doctrine as of the 1960s by voices such as Joel Feinberg, Jean Hampton or Antony Duff. It supports different functions of punishment. In criminal law doctrine, it has inter alia been linked to processes of norm affirmation (Günther Jakobs), expression of censure (e.g., Andreas von Hirsch), victim-related communication (Tatjana Hörnle) or theories of positive general prevention (e.g., Klaus Günther, Claus Roxin). It has received a vivid reception in transitional justice theory and historical scholarship. Atrocity trials have been associated with expressivist functions, such as law affirmation, norm projection or broader didactic aims since the outset (Diane Amann, Saira Mohamed). Scholars have defended the virtues of trials based on their ‘didactic legality’ (Lawrence Douglas, Mark Drumbl) or contributions to deliberative democracy (Mark Osiel, Pablo de Greiff). Trials were seen as liminal spaces, which provide a pathway from the past to new ways of thinking and acting (e.g., memorialization).
As Tim Meijers and Marlies Glasius have argued, expressivism requires three elements: a sender, a speech act and an audience. It may be grounded in a communicative relationship between norms, crimes and trials and punishment. It involves not only norm expression, but communicative relationships with the offender, victims and the broader public. It is able to explain paradoxes and tensions of international criminal justice and complements classical punishment theories. I distinguish four different types of expressivism: norm expression, institutional expression, procedural expression and remedial expression. These four dimensions are inherent in the practice of international criminal justice. However, they continue to face different objections: empirical challenges, power-related critiques, risks of instrumentalization and dilemmas of mediation.
Norm expression is related to the performative nature of international crimes and the nature of law as a discursive space. In many instances, adjudication may be considered as a legal response to crime, a counter-performance or a form of social production that transforms reality. It affects different audiences and does things with them and to them. Law and literature scholarship (e.g., James Boyd White) has shown that law uses techniques of rhetoric, narration and storytelling to persuade and create affective bonds with audiences. In international criminal justice, classical rhetorical features such as logos, ethos and pathos (Birju Kotecha), are used to affirm the value of norms, to project new norms and to commit others to behave in a specific way.
This is reflected in the interpretation of crimes, the development of norms and communicative techniques, which rely on common identity, convergence of interests, symbolic meaning or fiction to encourage norm internalization. Key judgments on aggression, terrorism, immunities, non-state actors, intra-party protection in non-international armed conflict or sexual and gender-based violence have relied on historical process-tracing, story-telling or collective narration in order to adjust the law to novel challenges (see also Anette Bringedal Houges’ narrative expressivism’). ‘We’ narratives, emotive language and metaphors are part of a constant strategy of self-justification (Immi Tallgren). They have created novel legal spaces and interactive bonds, but also exposed international criminal justice to critiques: self-referential expression, norm entrepreneurship, creation of new forms of hierarchy or production of inequalities.
In many instances, the very establishment of institutions carries messages in itself. The close link between communication of knowledge, belief and moral authority and institutional practices has been recognized in organizational theory. Institutions rely on symbolism, rituals and memetic practices in order to ensure their own survival (Marina Aksenova). This also applies to international criminal courts and tribunals. They are not only legal mechanisms to respond to crime, but carriers of multiple social meanings. These symbolic aspects are often overlooked. Sometimes, the ‘medium’, i.e. the institution itself, entails a message. Historically, institutions have expressed different types of messages: signals of memory and remembrance, shame and apology, re-creation and renewal, hope and belief, or protest. The type of message may change over time with the evolution of the respective institution.
International criminal justice cannot simply be, but is driven by expectations of action (e.g., ‘justice must be done’). Speech act theory (e.g., John Searle) is an important analytical frame to understand practices and institutional discourses. Messaging reaches far beyond the trial as such. Communication is not only an auxiliary activity, but related to the exercise of core functions of justice institutions (Mohammad Zakerhossein). Actions, such as jurisdictional or admissibility determinations (e.g. complementarity), preliminary examinations or investigations, arrests, or cooperation may be understood as speech acts. They create new narrative subjects, entail commands or incentives for action or convey attitudes and emotions. The idea of sending messages is expressly reflected in outreach and legacy policies. Such institutional speech acts reach a broad public. However, they are often insufficient to produce the intended societal effects. Experiences of the ad hoc tribunals, the SCSL or the ICC show that expressivist actions do not simply speak for themselves, but require translation and investment in communicative relationships. They create novel social roles and ethical responsibilities that have not yet been fully contemplated in institutional practice.
International criminal proceedings convey messages beyond the Courtroom. They carry symbolic meaning and contain narrative, educative and transformative features. They have a strong performative dimension (Julie Stone Peters). Publicity is not only an institutional guarantee, but a part of the fair trial rights of defendants. Trials rely on demonstration. They involve a stage, a plot, audiences and scripting. This is sometimes reflected in the maxim that ‘justice‘ must be ‘seen to be done’. In legal literature, these features are often associated with negative attributes, such as ‘show trials’ in the political sense. However, performance is not necessarily something negative. As Niklas Luhmann has demonstrated, role play, i.e. the exercise of certain ascribed or expected roles in proceedings, may have certain positive effects because it create bonds and dependencies (e.g., ceremonial integration). It may lead parties to accept outcomes even if they disagree with the result in the specific case. Judgments may perform a certain genre or tradition.
Trials create novel relational spaces and communicative relationships. However, they remain an imperfect form of discursive justice. They convey parallel and conflicting discourses. Communication is more expressive than dialogue-based. The adversarial nature of proceedings may impede mutual engagement. Victims have limited opportunity to share their personal stories or to engage with the offender. The justice that is produced is more prospective than immediate.
Expressivism diversifies perspectives on punishment. It is a means to deal with the inherent limitations of punishment in atrocity contexts. The particular value of international criminal justice lies not necessarily in the severity of punishment or the infliction of just desert, but rather in the publicity of the process, the condemnation of crimes and the establishment of accountability towards a broader community. Expressive punishment is less perpetrator-centred. It builds on expression of wrongdoing and communication of punishment. It is grounded in retributive-expressive justifications of punishment, preventive rationales and restorative rationales, such as messages about equality of victims and offenders. This approach is able to accommodate a more holistic conception of punishment, including alternative sentences or modes of enforcement.
Reparations have an important complementary function to punishment (Kirsten Ainley). They may be able to transform social relationships and re-create social bonds broken by crimes. International criminal proceedings have a modest role in this regard (Rachel Killean & Luke Moffett). The ability of perpetrators to do harm exceeds their ability to repair. Courts cannot order states to pay reparation. Voluntary state contributions are limited. Collective forms of reparation are often the only realistic option. The merit of reparations is inherently symbolic and linked to gestures. Reparations have at least three important expressive functions: They may communicate responsibility to towards victims, provide recognition of agency and harm and provide a form of redress of harm that is often missing in the criminal process. They enable a more creative way of dealing with harm and structural forms of violence, i.e. through education, memorialization or creative arts.
Ultimately, expressivism has two broader social functions. It is a means to reaffirm the purposes and ambitions of the field and to encourage commitment to it, and to enact and perform law. It also provides a more realistic understanding of justice. It views justice not as something ‘objective’ or ‘definitive’ that can be delivered, but rather as an inter-subjective process that is triggered through messages and communicative relationships: Justice is a message.