Justice as Message Symposium: Expressivism as Bridging Theory

[Darryl Robinson is an Associate Professor at Queen’s University Faculty of Law (Canada), specializing in international criminal justice.] 

Carsten Stahn’s Justice as Message is a singularly impressive work.  Carsten weaves together ideas from several bodies of literature, in a manner that is breathtaking in its depth, breadth and sensitivity. 

Over the last 25 years, scholarship on international criminal law (ICL) has been greatly enriched.  In earlier, lonelier days it largely consisted of classical legal arguments, coupled with good intentions and appeals for action.  Since that time, while ICL as a field has had highs and lows, the scholarship has certainly flourished, with exciting critical, philosophical, empirical, criminological and other dimensions.  Justice as Message is another landmark in this thoughtful trajectory.

Scholars and friends have pointed out to me that I tend to examine arguments on two levels: the usual level, of how the argument advances a particular substantive debate; and also on a meta-level, examining implications for broader patterns in discourse and scholarship.  I will do the same with Carsten’s book, explaining why I find it promising as a bridging theory.  By “bridging” theory, I mean that Carsten convincingly combines, within one framework, inquiries that are typically divided into largely-separated conversations. 

I will explain why I find this particularly impressive and illuminating.  Two of the literatures on ICL that I read the most are legal philosophers and “critical” scholars (who often adopt postmodern approaches from the humanities).  Scholars in these two sub-disciplines tend to work on different problems, in different conversations, with different vocabularies and different preoccupations.  In a nutshell, legal theorists debate a particular set of questions, including the moral justifications of criminal law (or ICL).  Critical scholarship focuses on emergent problems of a system revealed in practice.  As I will suggest in a moment, each sub-discipline tends to set aside, perhaps too hastily, the favoured topics of the other.  The interaction between the two groups is relatively limited (with notable exceptions of course).  Indeed, if anything, they seem to have further polarized over the last two decades.   

To give you a sense of what I mean, I will paint a quick, simplified sketch with a very broad brush.  Critical scholars rightly seek to expose biases, hegemonic influences, negative impacts, exclusions, and other problems.  However, they are often too quick to discredit potential legitimizing justifications or benefits, acknowledging them only to cursorily dismiss them.  Critical scholarship often dismisses the main rationales for criminal justice as either ungrounded beliefs mindlessly echoed by uncritical practitioners, or worse, as insincere rhetorical cover for selfish or hegemonic aims.  Over the last two decades, accusations about such aims have grown increasingly strident, so that the alleged concealed purposes and schemes are often outright nefarious and conspiratorial.  As Carsten notes, ICL is presented by some as an “evil design” (p. 4). 

A common concern with at least some of the critical literature is that it can be methodologically hasty.  For example, in the rush to decry a given doctrine (or decision, practice, or institution) as proof of a given sin (eg. hegemony, bias), scholars sometimes do not give careful auto-critical consideration to plausible alternative hypotheses (eg. what if it was a good faith, appropriate application of a rule that is morally and socially sound?).  Neglect for legitimate pro-social benefits, and a zeal to find only faults, will hamper clear-eyed appraisal.  It will lead us away from better understanding and good policy.

On the flip side, moral philosophers of criminal law (or of ICL) can often be accused of focusing too much on a familiar set of abstract normative questions, without looking at darker aspects of actual criminal justice systems in practice.  The moral theorists could be accused of spending too much time on ideal theory, making fine-grained adjustments in intricate debates, but never quite getting around to considering the power, privilege, biases, or repressive dimensions of criminal justice systems.  Those dimensions, especially if they are endemic, may undermine the given rationales for any criminal justice system.  Obviously, a clear-eyed assessment has to consider these problems, and whether they are inevitable or ameliorable, whether they undermine a given rationale, and what the net implications are.  

On the occasions where members of the two disciplines encounter each other, they are often politely aghast at the perceived superficiality or blindspots of the other’s methodology.  Personally, I I like the argumentive rigour of analytic philosophers, and I share the ideologicalsensitivities of most critical scholarship.  But they largely appear as two different projects, studying different aspects of the elephant.

Enter Carsten’s book on expressive theory.  Carsten’s expressivist approach engages in open-minded inquiry into normativejustifications (hence he draws on Hegel, Duff and others).  But he is equally curious about biases, shortcomings, and exclusions.  If justice is a message, then what is the message, whose message is it, who transmits it, and to whom?   Justice-as-message offers a framework that works readily with the philosophical, normative, social, empirical, and critical.  This book shows how an expressivist account has myriad implications for how we think about the system’s operation, including its case selection, procedures, trials, and outreach. 

When I say that expressivism is a “bridge”, I do not mean that legal philosophers and critical scholars will all immediately adopt it and henceforth be united in joy, dancing together under a common banner.  I simply mean that it provides an umbrella perspective that takes both normative theory and critical inquiry seriously.  Despite the differences in the methods and valence of the two disciplines, the framework is plausibly concerned with both, as part of its expressivist evaluation of the system and its practices. 

Carsten’s proposed method is not intrinsically apologist, nor is it committed to a “look-how-transgressive-I-am” rebel’s pose.  It can be used for open-minded, rigorous inquiry.  The framework is earnest but sophisticated: it could be used to examine justifications, to reform understandings and practices (modestly or radically), or to critique and object to the system as a whole.  

Carsten arrives with neither an axe to grind nor a hill to defend.  He outlines numerous issues for difficult inquiry, and he does so adroitly and fair-mindedly.  His unflinching but even-handed approach is a model for scholarship.