Affective Justice Symposium: Politics and Law in Kamari Clarke’s Affective Justice

[Katherine Lemons is an Associate Professor of Anthropology at McGill University and author of Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism (Cornell 2019).]

Kamari Maxine Clarke’s new book, Affective Justice, is an important contribution to anthropology of law. The book brings a question frequently asked of small non-state adjudication institutions to bear on two international criminal courts: what makes non-state legal institutions effective “when they do not have universal jurisdiction, enforcement power, a police force or military, or the assumed loyalty of a citizenry, as a state does?” (4) The International Criminal Court and the African Court, on which the book focuses, prove to be fecund sites to ask this question, in particular viewed in relation to the broad range of ethnographic sources Clarke brings together. Several teams carried out the research, which includes analyses of political speeches, interviews and archival research at the International Criminal Court in the Hague, the African Court in Tanzania, the African Union in Addis Ababa, Ethiopia, civil society organizations, conferences, and interviews with survivors of violence in Kenya and Nigeria. The variety of research sites allows Clarke to think about organizations in relation to some of the broader political and social worlds of which they are part.

While Affective Justice is explicitly concerned with international law, we learn from the book’s far-reaching ethnographic material that multiple valences of politics are constitutive of these institutions and their reception and therefore crucial to their success. One might go so far as to suggest that the book’s main, if implicit, argument is that all law is political and that legal processes are therefore only as just as the political ends they serve. Although Clarke writes that, “law’s possibilities are found in emotional aspirations for social change, not in its core instrumentality,” her book identifies such aspirations as political and social, while law appears to be mainly instrumental (264).

One way to reframe the book’s argument is in terms of authority (a concept only fleetingly mentioned in it). The ICC and the AC show that legal regimes and processes achieve and maintain legitimacy as their constituencies gain or lose the ability to feel their command as authoritative. To understand how such non-state institutions work, then, requires an analysis of how people come to feel that they have encountered “advice which one may not safely ignore” (Mommsen quoted in Arendt 1963, 123). Affective Justice argues that such affect is manufactured and manipulated through political rhetoric, social media, and various campaigns of persuasion, all of which create, draw on and leverage shared sensitivities. One consequence is that the bedrock of non-state legal authority is fickle.

Although fickle, affect is not haphazard. This seeming paradox can only be addressed if we attend carefully to the book’s major concern, which in my reading is not with affect and not with law but with justice. The justice of Affective Justice is a shifting concept. Its first face is legal justice, which is as fickle as the affect upon which it relies. In the book’s preface, Clarke writes that law provides a “retreat…in the midst of ambiguity and dismay” (xix) rather than a comprehensive and appropriate response to “the poisoned politics of the postcolonial state” (xxi). Law as retreat is a technocratic measure offering a (false) sense of clarity; its justice is synonymous with the legal outcomes it produces. Law’s justice is most apparent in discussions of the ICC, which individualizes responsibility for violence and is thereby limited to prosecuting African heads of state. The ICC’s victim-perpetrator paradigm, with its limited temporal jurisdiction (chapter 4) cannot redress long-term and historical processes of dispossession such as trans-Atlantic slavery, colonial exploitation, or economic restructuring, all of which Clarke and many of her interlocutors understand to constitute the origins of violence and other forms of injustice in Africa. For this reason, law’s justice reassigns causes of injustice—“reattributes” them, in the book’s idiom—through emotional rhetoric, which is both indispensable to the success of law and also a form of misattribution. Law in this sense is an artifact of the processes that put it into place, and the way it chooses its targets reflect global politics and imaginaries. This so-called justice is hollow at best and misguided at worst.

The empirical and theoretical answer to law’s justice is true political justice. Nowhere is this more apparent than in Clarke’s comparison of the ICC and the African Court. The ICC is not, in Clarke’s account, a-political but it appears to many as a “corruption of justice” (173) because it does not seek to identify and redress the deep conditions of violence in Africa. Indeed the politics of the ICC are politics in the derogatory sense: the ICC represents political interests of the global north, holding African but not European leaders accountable for violence and thereby undermining African political and economic self-determination (170). This is the so-called justice of European judges saving African victims from African perpetrators. African Union Pan-Africanism, on the other hand, is “desperately committed to economic and political power in African terms,” (202) which is itself a struggle with the legacies of colonialism. The AC is thereby part of a continent-wide effort to establish sustainable and deep forms of justice including “healing, equality, reconciliation, obtaining compensation and restitution, and establishing the rule of law” (201). The AC’s justice is politicalin the positive sense: it addresses a broad swath of economic and political crimes including piracy, unconstitutional regime changes, trafficking and environmental exploitation (36) and thereby works to secure a more equal and less violent future for the continent.

It is here that we see how affect can be both fickle and not haphazard. Affect is just as important to efforts by the African Union, the African Court and African leaders to secure legitimacy as it is to the ICC. And these efforts can be equally manipulative (140). But Clarke suggests that the AU and African Court have greater legitimacy than the ICC because they offer more astute assessments of the sources of violence in Africa and of the means needed to redress such violence.

With the discussion of political justice, the ethnography takes up a very different approach, one that no longer seeks to identify the reality of shifting, emotionally-driven constellations of meaning but that gives a substantive content to the meaning of justice in Africa. The most powerful moment in Affective Justice captures this substantive conception of justice. The epilogue opens with a story within a story told to Clarke by an African civil society activist. In the vignette, an elderly woman tells a young boy trying to recover money stolen from him by a girl that he will “become a man” the day he asks himself about the broader causes of his condition. The boy’s father is dead, and, in Clarke’s analysis: “The woman’s answer [to why his father was dead] was that the day you realize that justice is not just about addressing theft and violence through the law but that justice is about addressing the larger conditions within which theft and violence happen, is the day that your understanding of justice represents the issues at the core of the human condition” (263). While Clarke is careful to tell us that this is just one person’s conception of justice, what makes the vignette so moving is that it clearly captures what the book has implied all along: justice is not a property or effect of law, and it is not just whatever people fleetingly feel it to be, but lies in a procedure of addressing sedemented histories of structural inequality and violence. Clarke writes, “my goal here has been to…rethink the anthropology of international justice through the recognition of injustice” (263). Indeed, to the extent that the ICC is a misfire, it is because it fails to address structural violence and inequality and instead assigns guilt to specific African leaders for ills that Clarke argues (without absolving them of wrongdoing) are possible within conditions that long preceded them but that continue to shape Africa’s place in international divisions of labor, wealth and violence.

The epilogue’s strong claim that justice is about addressing historical and political structures of inequality and violence brings into relief a tension that justice introduces throughout the book. Justice is both a relative concept and a substantive one. It is what different actors say (and feel) it to be but it is also (perhaps underneath this, and really) a matter of redressing specific injustices. The tension poses a problem of scale that the book invites us to consider. While the ICC appears to fail because it is at once politicized, narrow in scope, and removed from African predicaments and understandings of justice, the African Union and African Court are better placed to identify felicitous ways of addressing injustice in Africa as they respond to deep histories, experiences, and politics on the continent. Yet if a more local response is a more just one—if in some way all justice, even international justice, is local—one wonders how to think about the relationship between the promise of a pan-African court and that of a very local one, such as Rwanda’s gacaca courts (see Chakravarti 2013). Here I would like to know more about how different people understand the African Union and its justice institutions. What might we learn about justice from those who do not recognize the African Court’s authority? Supporters of the AU told Clarke that it is seeking “to develop a regional [legal] custom,” which Clarke reads as an effort to “articulate a regionally differentiated practice” (246). Yet the region in question is a continent, and the “particular cultural sensibilities and practices” to which the AU seeks to be sensitive cannot possibly be shared by everyone (246). What, then, makes the idea of Africa as a unity authoritative? Whose justice and which sensibilities are instantiated by the international body that is the AU?

Affective Justice convincingly shows that legal justice disarticulated from a deep sense of political injustices must remain hollow. The point is compelling. Yet, as the book’s vexing analysis of Boko Haram’s infamous kidnappings makes clear, a nuanced analysis of political justice requires a more granular account of specific political struggles in Africa and their relationship to legal processes than the book has the space to deliver. Chapter three is an analysis of the international #BringBackOurGirls campaign launched in 2014 in response to Boko Haram’s kidnapping of three hundred women and girls in Nigeria. Clarke convincingly argues that the twitter campaign, in which celebrities and ordinary people in the global north expressed horror at the kidnappings and demanded the return of the women and girls was shallow and limited and often characterized by dubious and paternalistic undercurrents. She shows that the kidnapped girls and women could elicit support by celebrities in the United States because they could be assimilated as “ours” and because demanding their return fits into the broader understanding of culpability also visible in the ICC. The demand implied that returning the girls and women would enact justice—it “encapsulated justice with legality” (137). Clarke argues that such a demand “makes structural inequality unintelligible” because it artificially isolates the kidnapping from the “actual violence of inequality” (137). Here the book’s ongoing theme re-emerges with the important argument that structural inequality is also deadly and therefore ought not to be ignored in the face of its specific and spectacular effects.

Yet Clarke’s argument that one ought to attend to deeper sources of injustice, which will be unaddressed by returning the abducted women and girls, is significantly undermined by her own analysis. Clarke writes that she is “not justifying Boko Haram’s violence” (135) but she argues that because Boko Haram came into being as a response to the disproportionate poverty of northern Nigeria, itself a legacy of pre- and colonial organizations of resources and political power, participating in a campaign to free the people they abducted is dubious. She concludes that “it is important to see such social movement formations not simply as innocent forms of contemporary activism but as reinforcing particular ideological commitments to Western democratic liberal values that are not always shared by all” (137). The critique is puzzling in the context of an argument whose normative position includes a commitment to democracy, which certainly is not a political form or aspiration limited to “the West”. The chapter implies that to participate in criticizing the abductions requires ignoring structural inequality and that the appropriate corrective is to recognize that Boko Haram’s existence is an effect of such inequalities and an effort to, among other things, contest colonial education (134) and resist US imperialism (137). Might it not be possible, though, both to recognize the deep conditions that make Boko Haram viable and to criticize their tactics? I would have liked, to that end, to know more about the Nigerian activists who Clarke briefly tells us initiated the #BringBackOurGirls campaign. Renato Rosaldo’s perspicacious intervention on the question of relativism provides an important rejoinder to this position: to understand [the conditions of possibility of Boko Haram’s existence] is not to forgive [their actions] or, I would add, to accept their violence. Might a combination of understanding and critique not be part of an anthropologist’s project?

Affective Justice raises many important questions about the affective ground of law, the problem of identifying and responding to injustice at a variety of scales, and the politics of law. The irony of its impressive scope is that it ultimately invites the reader to ask for more granular knowledge about how people uninvolved with but affected by international courts understand the justice of international law, whether within or beyond the continent of Africa.