Justice as Message Symposium: A Powerhouse Platform for Expressivism in International Criminal Law

[Marina Aksenova is a Professor of international and comparative criminal law at IE University, Madrid, email: marina.aksenova@ie.edu.]

I enjoyed reading Carsten Stahn’s Justice as Message (OUP, 2020). The work presents a carefully weaved tapestry of ideas surrounding the concept of expressivism in international criminal law. The book is undertaking an impressive task of bridging a normative gap between the ambition of international criminal law and its reality – a question that has been on many scholars’ minds for over a decade. It does so by engaging with expressivism as a theory of justice. The argument is that expressivism has capacity to encompass the symbolic and performative dimensions of various elements of an international criminal justice edifice: its procedural component, the content of its norms, the value of its institutions and the meaning of punishment rendered by courts.

This work is very rich and multilayered, making it very tempting to go into depth within each section of the volume. I will, however, limit myself to three meta-observations and one contemplation inspired by the Reg Veda.

Firstly, this work’s truly encyclopedic reach should be celebrated. Justice as Message is, to my knowledge, the most comprehensive account of the theory of expressivism in international criminal law as it contains references to a great variety of sources, which are generously cited throughout the volume. I would highly recommend this book as a starting point to anyone who wishes to get instant access to relevant research done in the field of expressivism. A side product of such comprehensive approach is that the book feels very much like a communal effort. A strong sense of shared understanding among scholars and practitioners of international criminal justice contributes to its inherent expressive power.

Secondly, this volume is a strong plea for interdisciplinarity in international criminal law. Justice as Message clearly ‘walks the talk’ as it engages closely with the works originating in the fields of sociology, criminology, psychology, and philosophy. For instance, the book is permeated by references to the ideas of Émile Durkheim, who is frequently given a title of ‘pioneer’ in criminology. Durkheim’s work is engaged to demonstrate instances of ‘collective effervescence’ – momentary occurrences in time and space that enable community building and discourse formation. Justice as Message offers a contemporary international criminal justice account of creative processes contributing to the formation and maintenance of the field. Another example of interdisciplinarity is this work’s convincing incorporation of Aristotle’s theory of rhetoric – understood as logos, ethos and pathos – into the idea of normative expressivism. It is argued that international criminal justice pronouncements are a culmination of these three elements: legal argument grounded in logic (logos), value-driven discourse (ethos), and a strong appeal to emotions (pathos) (discussed in chapter 2 on norm expression).

Thirdly, I find the structure of the book to be very supportive of the argument, I would even go as far as saying that the structure itself is an argument in its own right. The book discusses expressivism through the lens of punishment, norm formation, criminal processes, and institution building, among other things. Such logical and systematic approach allows for the invention of analytical categories that can keep evolving together with international criminal justice. 

Finally, I would like to offer a short contemplation prompted by reading Justice as Message. The inquiry that stayed with me throughout the volume was whether expressivism as a theory of justice explains deeper patterns driving the development of the field of international criminal justice. An analogy with the four levels of speech developed in the ancient Indian philosophy and personified as Vāk – the Goddess of divine speech mentioned in the Reg Veda – is helpful here.

The first level of speech is called Parā vāk and it refers to the deepest level of understanding of reality, which is beyond any distinction. It can be roughly equated to logos or the supreme word in Greek philosophy. The second level of speech is Paśyantī vāk, which denotes the ground upon which all discourse is formed. This level does not contain distinctions between subjects and objects, but rather it holds the impressions of the pattern, or the ‘templates’ for our mental engagement with reality. One can say that it is the place from which one’s perception of the world is formed. The third level of speech is Madhyamā vāk, which is the level of thought and internal discourse. The thought at this level is highly symbolic and may come in a variety of forms including images and signs. At this level, the process of cognition is more dominant than its object.

Finally, the fourth level of speech is Vaikharī vāk, which is everyday articulate speech expressed in writing or orally. It is the level of all languages as they denote the distinction between subject and object. It is also the level of a purely legal discourse conducted in a binary language – guilty/innocent; perpetrator/victim; binding/non-binding, and so on.

Expressivism appears to be a way to explore deeper foundations of international criminal justice that go beyond the most superficial level of legal discourse. ‘Superficial’ is not used in any demeaning way here, but rather to reflect one of the four levels of speech explained earlier. The focus of exploration of a scholar interested in expressivism therefore shifts to the third level of discourse presenting itself as the processes of norm formation, symbolization and attributed meaning – all of which require an interdisciplinary perspective, helpfully adopted by Justice as Message.

My further query is whether the theory of justice seen through the lens of symbolic expression can explain even more fundamental categories that operate within the field of international criminal justice. Is it possible to identify a pattern informing norm creation and procedural expression in international criminal justice that captures our imagination? How can one approach the underlying assumptions informing the evolution of international justice?