Affective Justice Symposium: Reviewing Affective Justice

[Bronwyn Leebaw is an Associate Professor of Political Science, Director of Global Studies, at the University of California Riverside.]

In Little Fires Everywhere, a television series based on the novel by Celeste Ng, Elena Richardson is eager to provide assistance to her new tenant, Mia Warren, welcoming her to the neighborhood, offering her a job, and looking after her daughter. Elena called the police on the day that Mia arrived in town to report that a shabby car was parked in her posh neighborhood, noting that the driver appeared to be African American. However, she feels empathy for Mia when she meets her in person and perceives that Mia is struggling. Elena, played by Reese Witherspoon, tells her husband that it makes her feel good to help people like Mia, but she finds it perplexing that Mia, played by Kerry Washington, does not seem to be very grateful for her generosity. Elena is unsettled when she discovers that Mia is a formidable intellectual and successful artist with little need for assistance. She is outraged when Mia supports Bebe Chow, the immigrant birth mother who has initiated an explosive legal case for custody of a baby that was adopted by Elena’s closest friends. Elena no longer sees Mia as a helpless victim, yet cannot comprehend her actions, and embarks on a destructive quest to ensure that Mia and Bebe are held accountable for choices that are, from Elena’s perspective, deeply threatening. When the court validates Elena’s emotional intuitions, Mia advises Bebe to take matters into her own hands and leaves town, but not before producing an elaborate work of art that exposes wrongs and erasures associated with the town’s white supremacist history.

To understand the operation of legal order, it is important to look at how how affective appeals can displace or inform alternative ways of conceptualizing justice, argues Kamari Clarke in her pathbreaking book, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback. Elena believes that her own mistakes are relatively benign and sees her own success as evidence of inherent goodness, but she is inclined to view Mia’s achievements and her mistakes as evidence of inherent deviance. The International Criminal Court (ICC) is bolstered by an “emotional regime” that operates on a similar logic, Clarke suggests. The legal technologies and emotional appeals that strengthen international criminal justice encourage privileged audiences to see their own emotional intuitions as natural, universal, and benevolent, Clarke observes. When powerful states move to insulate leaders from ICC scrutiny, this is seen as rational and relatively benign behavior, yet when African Union leaders protest the court’s exclusive focus on war crimes committed in Africa, this is condemned as regressive, irrational, biased, and corrupt. This dynamic is reinforced by what Clarke refers to as “legal encapsulation” –a technocratic practice that shifts attention away from structural injustice by focusing on individual legal accountability and the moral responsibility to protect helpless victims (17). “Affective justice” is powerful, Clarke argues, because “it shapes how justice feels” (260). To understand what is at stake in the AU’s response to the ICC, she argues, it is important to investigate how political actors mobilize affective appeals to challenge the logics of displacement and to reattribute culpability with attention to historical and structural context.

This is a magisterial work that builds on extensive fieldwork to make a powerful case for shifting the parameters of debate on international legal norms in important ways.

First, Affective Justice advances a distinctive framework for analyzing the power of emotional appeals as a basis for mobilizing international norms. A number of scholars have analyzed the role of narrative as a basis for documenting or mobilizing emotional responses to injustice. Clarke, who investigated such themes in Fictions of Justice, The International Criminal Court and the Challenge of Legal Pluralism in Subsaharan Africa (2009),here advances a framework for investigating how sensorial, material, economic, and spatial landscapes influence the power of affective appeals. It is important to investigate how the power of affect is mobilized through “assemblages,” Clarke contends, encompassing not only narratives and testimonies, but also slogans, practices, metaphors, governance technologies, images, utterances, and erasures. Building on this insight, the first chapter of Affective Justice addresses debates on the role of international legal norms in relation to structural injustice by investigating how legal technologies associated with neoliberal economic policies, such as the World Bank’s “Rule of Law Indicators,” have informed the framing of affective appeals associated with the ICC. The second chapter investigates the #bringbackourgirls campaign as a form of legal encapsulation can displace political responses to structural injustice by shifting attention to individual criminal guilt and the immediate needs of those in crisis. Launched in response to the kidnapping of Nigerian schoolgirls by Boko Haram, the hashtag activism of #bringbackourgirls centered on tweets that asserted a custodial relationship with the girls, while routinely identifying Nigerian political culture with “barbarism” (131). For Clarke, the campaign exemplifies how appeals for urgent action obfuscate the longer histories of colonial violence and structural injustice. Images associated with #bringbackourgirls also displaced the figure of the suffering victim typically featured in humanitarian appeals, Clarke observed, by placing Western women posing with empathetic expressions on their faces in the center of the frame.

Second, Affective Justice challenges the conventional emphasis on the order

-reinforcing power of emotion and narrative by investigating the disruptive potential of affective justice. The book develops this analysis in a way that advances scholarly debates on the role of international legal norms in response to colonial legacies by investigating how African leaders and activists have challenged the authority of the ICC through reattribution practices that invoke Pan-African imagery. Chapter four focuses on the 2013 campaign of Uhuru Kenyatta and William Ruto in Kenya. After having been indicted by the ICC in 2011 for post-election violence in 2007, Kenyatta and Ruto adopted a slick public relations campaign, observes Clarke, designed to counter the stigma associated with the ICC indictments by identifying their “brand” with the image of the freedom fighter. Chapter five develops this discussion by investigating the African Union Transitional Justice Policy, as well as an African Court of Justice and Human Rights with the Malabo Protocol of 2014. The AU’s Transitional Justice Policy made the case for holding off on efforts to prosecute suspected war criminals that might be needed to negotiate an end to conflict, and for pursuing meaningful diplomatic initiatives. The Malabo Protocol does not abandon  international criminal justice, Clarke notes, but establishes a basis for institutionalizing the AU’s authority to oversee the regional interpretation of established international legal norms, while expanding the scope of accountability to encompass economic crimes and corporate accountability.

Third, Clarke analyzes the power of affective justicewith attention to the interplay between strategic efforts to mobilize emotion and the constitutive power of affect. This enables her to analyze ambiguities and limitations of affective justice as an expression of political agency. Human rights organizations have criticized the sovereign immunity provision outlined in 46A bis of the Malabo Protocol on the grounds that it enables impunity. The trouble with such responses, Clarke contends, is that the conflict over head of state immunity is not just a dispute over the principle that “no one should be above the law,” but a dispute about the role of legal institutions in relation to historical wrongdoing, hierarchy, and inequality.  Clarke analyzes this provision, in chapter six, as a basis for restoring diplomatic immunity for African heads of state in a context where leaders of other regions effectively retain diplomatic immunity, and suggests that the provision was championed as a strategy for advancing economic sovereignty needed to address structural injustice and inequality. Clarke evaluates such strategies with attention to responses from a range of local leaders, policy makers, activists, veteran groups, and community-based organizations. By invoking symbolism associated with the heroic freedom fighter, she observes, leaders like Kenyatta and Ruto also shifted attention away from the disappointments associated with post-independence inequalities. “The main purpose of our struggle was land and freedom,’ reports a veteran of the Mau Mau struggle, who is quoted in the text, “but we have not gotten land” (158).

Campaigns that appeal for support by mobilizing empathy, such as #Bringbackourgirls, tend to flatter privileged audiences by suggesting that insularity is an asset that enhances their competence in responding to suffering and injustice. It is not easy to secure support with appeals that compel people to recognize something truly ugly about themselves. In some respects, the Pan-African pushback addresses this problem in a manner that is consistent with an approach taken by W.E.B. Du Bois in his appeal to members of the Human Rights Commission, and that outlined in the 1991 Principles of Environmental Justice. These documents are not framed as appeals for assistance from privileged Western audiences, but as appeals for solidarity from peoples of color engaged in common struggles against colonial domination and white supremacist violence. The logic of Clarke’s own analysis of the Pan-African pushback arguably resists certain conventional expectations regarding scholarly accounts of justice. She advances a wide-ranging critique of dominant international norms and locates an alternative formulation, yet her goal is not to defend the institutional arrangements associated with the Pan-African pushback as an emancipatory alternative. Pan-Africanism was seen as passé in the immediate aftermath of the Cold War, notes Clarke, and it has been revived as a way of making claims to global membership and global capitalism. The pan-African pushback has played an important role in exposing the contested character of international justice and by countering the erasure of colonial legacies, according to Clarke, yet she suggests that it has been limited and contradictory as a response to structural injustices. “The conundrum of AU Pan-Africanism,” Clarke observes, is that “alongside deep-seated conceptions of the Pan-African liberatory past is actually a deep desire to participate in neo-liberal power” (215).

Affective justice can be powerful and political actors can wield affective appeals in ways that unsettle established regimes, yet Clarke characterizes affective justice as a double-edged and ambiguous force—one that can be wielded as a basis for asserting political agency to challenge a prevailing order, yet also constrains, defines, and gives meaning to agency in subtle ways that we cannot necessarily perceive. This account of affective justice is also unsettling on many levels, because it upends moral and epistemological assumptions that have influenced debates on justice and legal order. If our judgments about guilt, responsibility, and agency are influenced, in ways that we do not necessarily perceive, by what we see, hear, and feel, when we encounter appeals for justice, this suggests that denial is more pervasive and more difficult to counter than people generally want to believe. The kinds of denial that are associated with affective justice cannot easily be countered with factual evidence and testimony because they are bound up in unacknowledged assumptions about self-hood, choice, and judgment, and reinforced by the geographies, practices, and experiences of daily life. This means that efforts to establish and enforce legal order will always be limited and ambiguous in response to institutionalized or structural forms of injustice. Clarke consistently calls attention to hidden complexities and ambiguities of affective justice. However, she also suggests that people do have certain shared intuitions about justice that we lose sight of when we conflate justice with legal order, or when we become invested in seeking privilege within an unjust system. “[J]ustice is not just about addressing theft and violence through the law,” she writes, but about “addressing the larger conditions within which theft and violence happen” (263).