30 Mar Justice in Extreme Cases Symposium: ‘One Must Imagine Sisyphus Happy’–On the Liberating Potential of Robinson’s Coherentist Approach to International Criminal Justice
[Carsten Stahn is a Professor of International Criminal Law and Global Justice at Leiden Law School, Programme Director of the Grotius Centre (The Hague).]
‘Sisyphus, proletarian of the gods, powerless and rebellious, knows the whole extent of his wretched condition: it is what he thinks of during his descent […] This universe henceforth without a master seems to him neither sterile nor futile. Each atom of that stone, each mineral flake of that night filled mountain, in itself forms a world. The struggle itself toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy’.
Conscious, but defiant, torn to his fate, yet taking comfort in the moment – this is how Camus portrayed Sisyphus.
Darryl’s excellent and path-breaking new book on ‘Justice in Extreme Cases’ reminds me of this image. It comes to grips with the tragedy of international criminal justice, its biases and imperfections, but shows a way to accommodate them. The turn to critical scholarship in ICL over the past decade has managed to de-bunk many of the myths and false promises of the field and to show some of its counterproductive or detrimental effects. Darryl’s elegant and thoughtful argument invites us to take these critiques seriously, to engage with them, but not to abandon the project entirely – rather to carry on and ‘push it up again toward the summit’. There is virtue in this process and the act of defiance. It creates a freedom within the constraints, repetitiveness or silos of the field.
Darryl gave us already a hint at the myth in his ‘Inescapable Dyads’. In this ground-breaking piece, he recognized the inherent and unavoidable dilemmas of the field. He showed us that international criminal justice involves many problems where any possible position is ‘inevitably flawed according to the aspirations of one or both sides of a dyad’. In his new book, he takes us the full way. Like Camus, he invites us to be aware of the contradictions, absurdities or frustrations of in the quest for justice, but not to ‘give up’. His deconstruction of ‘classical foundationalist’ models of justice is an act of liberation, which provides new space to re-think existing impasses.
For him, coherentism ‘is a general approach to forming beliefs’ (p. 117), which is applied in both ‘legal reasoning and normative reasoning’ (p. 226). He does not claim to find the ‘philosopher’s stone’, nor to invent the coherentist method. He argues that the method is already part and parcel of scholarship and reasoning in the field. He is just making us more aware and conscious of something that many theorists ‘implicitly assume’ or apply even without formal awareness’ (p. 228). He writes:
‘Most criminal law theory of ICL to date is best explained and best supported as an application of coherentist methods. Scholars are generally drawing on the web of available clues to construct the best understanding that they can of the principles, as opposed to rooting principles in axiomatic or epistemically privileged foundational propositions’ (p. 117).
Like Camus, he plays with our imagination. He argues that normative judgment about justice requires ‘imaginative role-taking’, i.e. something that Markus Dubber has called ‘empathic interpersonal role-taking’ (p. 67). This approach challenges the strict dichotomy between emotion and rationality which is often artificial in the context of atrocity crime (see also Kamari Clarke’s Affective Justice). Building on Hegel, who claimed that criminal law ‘honors’ the defendant, or Antony Duff’s conception of the offender as responsible and answerable agent, he argues that humanistic justice requires us to approach the defendant as ‘fellow moral person’. As a defender of liberalism, he strongly disagrees with the idea of grounding international criminal justice in an enemy penology, such as friend/enemy clusters (Carl Schmitt) or the idea of an ‘enemy criminal law’ (Günther Jakobs). Recognition of personhood and empathy are central to the pursuit of justice (pp. 11, 67).
An important building block of Darryl’s account is the distinction between coherentism as a method and mere ‘consistency’ of propositions. Coherence is more holistic concept, which ‘requires us to draw widely on all available clues, including normative arguments, casuistic testing of our judgements based on empathic role-taking, and noticing biases or argumentative fallacies that have previously led us astray’ (p. 108).
In the construction of his theory, Darryl takes up many themes of Camus’ myth. In the eyes of Camus, Sisyphus is not a nihilist, but passionate about his fate. Darryl defends a similar stance in relation to justice principles. He acknowledges that each of them ‘can be endlessly deconstructed’, but claims that we should be ‘willing to provisionally work with the constructs’, despite their paradoxes, ‘rather than falling into nihilism’ (p. 103). Like for Sisyphus, it is important for him ‘not to give up’, despite the lack of ‘guaranteed correct theory of justice’: ‘Giving up seems far more bankrupt than trying to work with the best available evidence’ (p. 118). Darryl’s account can accept that ‘fallibility, untidiness, and contingency’ are part of the human condition (p. 112). It recognizes the ‘iterative’ nature of justice, requiring the ‘process of continually revising our body of beliefs to better reconcile ideas and experiences’ (p. 108). Darryl claims that his theory may ‘improve our institutions, practices, doctrines, and even our formulations of principles through thought and effort’ (p. 105), but does not necessarily produce definitive answers: ‘It provides working hypotheses about fundamental principles’ (p. 116). The main merit is that it allows a ‘conversation’ which ‘requires us to grapple with questions of justice (ibid.).
This approach is refreshing. It does not only allow us to accommodate existing paradoxes and justificatory dilemmas (e.g., Schwarzenberger’s critique of criminal law without a state, ‘legality without a legislature’, p. 127) or to understand different approaches towards principles (nullum crimen, fair labelling) or concepts, such as command responsibility, duress (p. 133) and superior order (p. 136), but is able to make better sense of the field as a whole, by ‘combining liberal and critical insights’ (p. 71). It may thus save international criminal justice from its own peril.
The beauty of Darryl’s approach lies in the fact that it supports certain virtues that acknowledge the complexity of international criminal justice and enable the field to engage better with valid critiques. It leaves room for freedom and imagination, namely to develop concepts beyond established domestic or international analogies. It promotes modesty, rather than certainty (pp. 13-14), acknowledging that we may ‘never have “certainty” about principles of justice’ (p. 57). It allows us to accept imperfections and limitations (pp. 3, 14, 110), including ‘fundamentals without foundations (p. 86), and to take critical distance from impunity ideologies or the alleged aim to ‘to end the crimes’ (p. 36). It is able to live with ‘untidiness and imprecision’ (pp. 111-112) and can consider ‘the full richness of human experience, including its social and collective dimensions’ (p. 63). This is liberating.
Darryl’s book deserves to be widely read. His theory opens fresh outlooks on many debates that have been entrenched for decades. I would like to offer some additional reflections on three aspects, in order to complement his stimulating analysis.
My first observation relates to his humanistic account which is inter alia reflected in Chapter 3 on the ‘Humanity of Criminal Justice’. The book relies in general on a strongly perpetrator-centered vision of justice. Darryl notes that the ‘primary focus of ICL […] is on the culpability of individuals’ (p. 39). He argues persuasively that coherentist approaches may help address the flaws of both, ‘Just Convict Everyone’ mentalities and their dialectical counterpart, i.e. ‘Just Convict No-one’ approaches. In my view, it would helpful to add perspectives on the recognition of the personhood of victims in this discussion of the humanistic foundations of ICL. It is increasingly argued that criminal justice protects not only the personhood of the offender against revenge, but also the personhood of victims against denial of crime. For instance, scholars like Tatjana Hörnle or Markus Dubber have argued, justice is also about ‘the reaffirmation of the victim’s personhood in the face of the offender’s denial’. Atrocity crimes are not only abstract violations of the law, but acts which inflict concrete harm and injury to victims. Criminal justice serves an expression that wrong has been done to victims or that their harm is not self-inflicted. Victims benefit, at least, from certain procedural rights which are grounded in their dignity or personality rights. This understanding is reflected in regimes of victim participation or reparation at the ECCC, the STL, the Extraordinary African Chambers or the ICC. They vary in terms of success rates and have been subject to many, and sometimes well-founded critiques (e.g., hierarchization of categories of victims, commodification of interests, creation of inflated expectation). However, I would argue, that recognition of the personhood of victims counts among the important humanistic foundations of ICL. The recent naming of victims in the Ongwen trial judgment marks an important affirmation of this approach.
My second comment relates the potential scope of the humanistic account, which I endorse in principle. Based on Darryl’s discussion, I wonder to what extent deontic reasoning, which is about respect and recognition of ‘people (personhood, dignity, moral agency)’ (p. 66) can be applied to responsibility of legal persons or collectives. This type of responsibility has generally been marginalized in international criminal justice, due to its strong focus on individual criminal responsibility. Darryl’s fascinating account raises the question to what extent we can transpose humanistic accounts to legal persons, such as corporations, and engage with them as ‘moral agents’ based on conduct of their representatives, or whether we would need a different model altogether in regard.
My third observation relates to the idea of an inclusive and pluralistic ‘justice conversation’, which is key for deontic reasoning. Darryl argues persuasively that justice is not only about outcomes, but about the value of ‘an open-minded, cross-cultural conversation’ (p. 13). Such a conversation is necessary to find ‘a common language’ and contextualize reasoning. Darryl cautions rightly that such a conversation may only trigger ‘best possible understandings, not ultimate truths’ (p. 113 fn. 116). Drawing on Habermas, Darryl gives us an idea of the ideal type of conversation that he seeks, when arguing that ‘the “best” understanding is that which would be arrived at in an ideal conversation with all attainable information on hand and with all arguments properly considered’ (ibid.). I agree with this ideal type, but I wonder what reforms would be necessary to facilitate this, and whether we might need partly different structures in order to allow for such a conversation.
International criminal justice discourse continues to be marked by doctrinal clashes, misunderstandings and unequal speech relations. International or hybrid courts remain front and centre in discourse and scholarship, while domestic approaches remain in the shadow or even unreported. Comparative criminal law reasoning and methods, which might allow us to bridge gaps or critically re-assess positions, receive only limited attention. There are huge discrepancies in communicative power. Critical voices, including the TWAIL movement, remind us that many non-Western sources are not heard or reflected in textbooks or decisions. A conversation requires willingness to engage. How can we get communities, which operate in silos or do not speak to each other, to engage in such a conversation, or facilitate discourse over mid-level principles with those who do not accept the premises of a liberal criminal law? Should we embrace more separate or dissenting opinions in judicial decisions, in order enhance the justice conversation? Some of the existing discursive structures may need to re-thought as such, in order to enable more inclusive and holistic ‘justice conversations’. Darryl’s idea might be an invitation to contemplate more fundamentally who is included or excluded from discourse, and what hierarchies, inequalities or disempowering effects contemporary discursive practices produce.
Darryl’s pioneering new book provides many important foundations and innovative ideas which broaden the horizon and connect different fields. Through this work, and his many compelling articles, he makes us see criminal law theory through a different pair of eyes. His writings unpack not only doctrinal and methodological problems, but also shows us new ways to address them – which is often harder than the formulation of critiques. This is a blessing and makes his scholarship so invaluable. The journey which he has undergone in writing this work is reflective of the challenges and the transformations that ICL itself is facing.
This brings us back to Camus: ‘The rock is still rolling. I leave Sisyphus at the foot of the mountain! One always finds one’s burden again’.