29 Mar Justice in Extreme Cases Symposium: Introduction from the Author
[Darryl Robinson is an Associate Professor at Queen’s University Faculty of Law (Canada), specializing in international criminal justice.]
I am deeply grateful to each of the scholars who have contributed to this symposium. Together they have produced a wonderful collection of insightful reactions. I also thank Opinio Juris, and in particular Kevin Heller and Jessica Dorsey, for hosting this exchange.
Justice in Extreme Cases is about the criminal law theory of international criminal law (ICL). The project grows out of my PhD studies at Leiden University, and was given helpful impetus from the Antonio Cassese Prize for International Criminal Law Studies, and the Social Sciences and Humanities Research Council of Canada. It took me much longer to write than I expected, but the years of being lost in some thorny foundational problems helped me to learn a lot. I am particularly excited about some of the insights about method, which have changed how I think (see point 4 below).
Without further ado, I will set the stage for the reader, by summarizing the main ideas of the book:
- Criminal law theory meets ICL: The rules of ICL were drawn together quite quickly from various sources. Criminal law theory, which debates underlying moral concepts and constraints of criminal law, can help us more thoughtfully inspect, critique, and reform ICL. Conversely, ICL may challenge mainstream criminal law theory, by offering intriguing new problems and puzzles. Thus, the conversation may be illuminating in both directions. To keep the book short, I focused in particular on one small sub-set of issues: the fundamental constraints such as the culpability and legality principles.
- Need for deontic reasoning: Humanistic criminal law requires an additional type of thinking, in addition to the authority-based and consequentialist reasoning that are familiar and commonplace in most fields of law. I use the term “deontic” as a helpful addition to the ICL lexicon, as succinctly capturing this distinctive type of reasoning. Deontic reasoning directly ponders the principled limits rooted in what we owe to persons. Such reasoning is not entirely cerebral; it is also based in empathy.
- Two benefits: As I show in the book, ICL has at times given inadequate attention to the deontic dimension, generating problems. More recently, however, there are now signs of possible over-correction in ICL. Following criticisms about ICL’s insouciance with principles, some judges might understandably lurch to the opposite extreme, announcing absolutist and unworkable conceptions of principles, without a sound methodology. Thus, clarifying the constraining principles is helpful for two reasons: it can help make the law not only more just, but also more effective, by helping us to avoid ungrounded, exaggerated understandings that lead to unnecessary constraints.
- Coherentist method: I argue that the best method to clarify constraints is a “coherentist” method, which seeks the best reconciliation of all clues. This method lets us debate mid-level principles without first resolving the ultimate foundations of morality. I argue that much of our deliberations actually reflect the coherentist method. Clarifying the underlying method is helpful, because it enables us to work with both greater rigour and greater humility. Principles of justice are admittedly fallible human constructs, clarified through fallible human deliberations. Nonetheless, the deliberations are valuable.
- Illustrations: I illustrate these themes by unpacking some conundrums in command responsibility, a doctrine that is now entangled in controversy and confusion. With better attention to organizing concepts and moral principles, the law can be less obfuscated and more simple, transparent, consistent, and fair. In the course of these illustrations, I offer some prescriptions for the law. But my aim is not that every reader agrees with every prescription. My aim is to show the need for, value of, and sensibilities of, more careful deontic thinking. We can develop criminal justice that is more analytically consistent, normatively sound, humanistic, and effective.