Symposium on the Sentimental Life of International Law: The Affect of International Law

Symposium on the Sentimental Life of International Law: The Affect of International Law

[Carl Landauer taught history at Yale, Stanford, and McGill Universities and international legal theory at UC Berkeley School of Law.]

Gerry Simpson, in the final chapter of The Sentimental Life of International Law, urges international lawyers to follow the Voltairean advice, “Il faut cultiver notre jardin,” which Simpson means both figuratively and literally. Among the various garden images that Simpson marshals for the garden chapter of his book is Rebecca West’s focus in reporting from the Nuremberg Trials on “a man with one leg and a child of twelve, growing enormous cyclamens in a greenhouse.” [205] For Simpson, the cyclamens offer a “decentering of the trial, of the grand political moment.” [206] Nevertheless, that is not the first garden in West’s book. She opens A Train of Powder, “There rushed up towards  the plane the astonishing face of the world’s enemy: pine woods on little hills, grey-green glossy lakes, too small ever to be anything but smooth, gardens tall with red-tongued beans, fields striped with copper wheat, russet-roofed villages with headlong gables and pumpkin-steeple churches that no architect over seven could have designed. Another minute and the plane dropped to the heart of the world’s enemy: Nuremberg.” [3] West is beginning with the very sort of discordance that Simpson relishes. Yet, her plane descending on Nuremberg poses an odd mimicry of Hitler’s plane in the opening of Leni Riefenstahl’s 1935 Nazi-propaganda film, Triumph des Willens, as it emerges from the clouds to Wagnerian strains for Hitler’s arrival for the Nazi party rally.  For Simpson, Nuremberg is the site of the trials and the cyclamens—and West’s depiction of the courtroom as “a citadel of boredom”—but it should also summon the threatening images of the hundreds of thousands depicted in Riefanstahl’s film.  In The Sentimental Life of International Law, Simpson has brought us an immensely evocative book, filled with a polymorphous perversity of images and perceptions. I would suggest, however, that his book may invite even more polymorphism and more perversity, and, at the same time, more discipline in connecting the tissue of the life embodying his onrush of images and perceptions.   

Against the backdrop of international law’s “latest crisis”—put aside that it always seems to be facing crisis—Simpson writes that his book is “about our age-old longing for a decent international society.” [1] And in his book, he would like to re-enable international law by “speaking different sorts of international law or by speaking international law in different sorts of ways.” [2] He poses his book as engaging in a “kind of belle-lettrist insurgency,” [6] and he repeats the notion that he would like to envision international law as the “last of the humanities.” [4] As we read through the various chapters of Simpson’s Sentimental Life, he reframes or recalibrates the central goal of his book. To start his chapter on international law’s confrontation with historical method, he writes, “[i]n some respects this book can be viewed as an arrangement of encounters between something we seem to want to call ‘international law’ and a number of sentimental-literary ways of thinking or practices.” [113] Twenty pages later, he intones: “This book is partly an exercise in understanding international law and politics (and history) as matters of taste or aesthetics.” [133] And several times he invokes bricolage, which in these post-modernist times is always good, suggesting undisciplined efforts to create a discipline. Simpson may up the ante when he advises his reader, “you hold in your hands  the most useless book in the history of international law.” [6] Of course, we know not to close the book shut. Rather, Simpson is underscoring that his book is not instrumental in aiding his readers in setting out the elements of an international crime or presenting evidence in an international court. Among his playful, anti-disciplinary sources, Simpson draws from David Kennedy’s article, “Spring Break,” except that Kennedy’s informal, mold-breaking narrative of his 1984 trip to visit political prisoners in Uruguay is self-critique and critique of the practice, while Simpson uses his playfulness not for critique but to create a new sort of international legal practice.

Simpson, of course, has a view of a lifeless international law, taking a page from the common critique of law as full of its own overly technical grammar, technocratic in its self-image, and offering its own specialized expertise. Indeed, he describes the image of the international lawyer that comes to his mind, “This person carries a briefcase and a small piece of carry-on luggage, and she moves from town to town (accumulating air miles to be redeemed for upgrades on family holidays).” [34] Here we have the international lawyer on Kennedy’s “spring break,” except for her it’s not a break from her day job. Simpson wants to drive home the “absence of ‘life’ in the writing of international law and especially the way in which most international lawyers position themselves as a ‘person from nowhere’ . . .  a person with little or no inner life to speak of.” [31] He tells us that he has “been surprised  over the years how little emotion there is in the review pages of the international law journals.” [36] There is nothing of the “bitter disputes found in the Letters page of the New York Review of Books or in the (usually politer) London Review of Books”—never mind that the standard ruckus in those pages begins, “You didn’t read my book,” followed by the retort, “You didn’t read my review.”

Firmly in the dock for Simpson’s book is his own specialty of international criminal law, particularly the international criminal trial. Simpson had worked through the various critiques of international criminal law in past writings, particularly his Law, War, and Crime. There he spoke of law’s self-image with its “promise” that it “will deliver both justice and a form of truth.” [5]  And against that promise, he tells us of international criminal trials as being plagued with problems of proportionality, incompatibility, legitimation, and authority. There he rehearses his discussion, to have more play in his new book, of “bathos,” that law’s technocratic, procedural process can never encompass the horrors of great evil. In this earlier book, Simpson identified a tension within war crimes law: “I argue that war crimes law negotiates between a liberal cosmopolitanism (emphasizing individual responsibility, the rule of law, internationalism, tolerance of one’s adversaries) and an illiberal or romantic nationalism (emphasizing collective guilt, national prerogatives, procedural anti-formalism, and exemplary justice for outlaws).” [24] In his new book, Simpson is less interested in identifying a tension than in cataloguing the complaints. He recognizes Ruti Teitel’s foundational book, Transitional Justice, with its taxonomy of approaches to transitional justice. But mostly, Simpson wants to provide us a series of binary charges, which rather than grappling with the underlying tension emerge as a set of opposing indictments.

For some, international criminal trials focus too much on individual culpability—it is a trial with individual defendants after all—and missing the broader political and social point. That, for example, is the complaint of many of Simpson’s peers, like Immi Tallgren, Martti Koskenniemi, Tor Krever, and Karen Engle. Or the trial may be too historicizing, as Hannah Arendt found in the prosecution of the Eichmann trial. Trials may be too boring, as Rebecca West depicts the tedium of Nuremberg, or, as suggested by Kevin Jon Heller, trials may not be boring enough because they are drawn too much to the spectacular. And they are both bound up with legal intricacies and threaten to become show trials. For Simpson, Nuremberg was wrapped in procedural norms but he could quote its Charter to the effect that: “[t]he Tribunal shall not be bound by technical rules of evidence.” [93] He tells us that it “was a characteristic of early international criminal law that a search for precedents coexisted alongside obsessive declarations of ‘unprecedentedness’.” [92] In addition to the binaries, Simpson sees numerous cases of occlusion and legerdemain. When Robert Jackson at Nuremberg offers to frame the crime as giving “recognition to those things which fundamentally outrage the conscience of the American people,” Simpson finds that “[t]he victims of war crimes had become the people in general.” [103] And just as monuments can “unremember acts of history, trials sometimes erase those ‘crimes’ not juridified.” [107] In short, international criminal law is not only unable to address all the countervailing pressures on it, but it also works to close off areas of attention, memory, and redress.

But Simpson’s book—as he tells us—is a book of answers. So he goes through his chapters offering “sentimental” responses to the problematic of international criminal law, including discussions of humor, friendship, and the garden. Some of Simpson’s examples are little more than coincidences. When he refers to Treaties of Amity, it’s not clear they really have much to do with friendship. It is essentially a technical term, the “amity” not really conveying the human relationship of friendship with all its emotional weight. Similarly, Simpson homes in on Thomas Franck’s comment that some legal arguments do not pass the laughter test, not recognizing that Franck could have easily referred to the “red-face test,” but Simpson was interested in humor, not embarrassment. When Simpson turns to gardens, he tells us that gardening “has a double plot, so to speak: as once both Edenic, wild and anarchic but also suburban, aristocratic, manicured and stately.” [201] “The garden,” he tells us, “also has its dark and banalising effects. Indeed, the idea of enclosure itself was a prelude to the capitalist remaking of common land and common life and the privitisation of British spatial existence.” [201] But Simpson does not stick to the bounded notion of the garden as opposed to Robert Pogue Harrison, who observes in his Gardens: An Essay on the Human Condition—a book Simpson cites—“Almost all words for ‘garden’ in world languages have etymons linked to the idea of fence or boundary.” [56] These issues are minor because Simpson is after inculcating a new, sentimental cast of mind, experimenting with the matter of international criminal law.

In this effort, Simpson’s discussion of “after method” separates itself from his other experiments. Here, the method is historical method: “So, this chapter is a very indirect intervention into the continuing debates about how to conduct oneself in the field of global legal history and especially how to think about doing history after method (or in the aftermath of the methodology debates).” [114] Here Simpson is voicing a common view of an onslaught by professional historians with their focus on context- driven history. And Simpson follows that common trend by identifying that history with Quentin Skinner—as if Leonard Krieger, Peter Gay, Carl Schorske, Martin Jay, and many others did not exist. Indeed, as a counter to that contextual history, or perhaps to checkmate it, he writes: “What historians might think of as ‘a lack of context’ (the absence of culture, event, social surroundings), might simply be a different sort of context: a linguistic context, a textual context, a legal context” [127]—as if the work of Dominick LaCapra and other cultural and intellectual historians did not exist. Putting aside Simpson’s adopting this odd cliché about international legal history, it is peculiar that when Simpson refers to “method,” he means historical method. One would have thought that with the traditional sense of international law’s inadequacies—consider how long the discipline has worked to ward off the Austinian challenge that international law is not law—and with the array of challenges Simpson catalogs for international criminal law, a challenge from professional historians about the character of history would not be high on the list of priorities for Simpson. But Simpson is getting to a point here. He suggests that “after method, we might find the struggle over context and anachronism means that international legal work is productively reread.” [139] Finally, that “after method, we might be able to see history in all its strangeness.” [146] Essentially, Simpson uses the confrontation of professional historical “method” with amateurish “anachronism” to summon the uncanny, the Unheimlich.

In his push for the sentimental life of international law, Simpson invites us to look at the play of emotion in international law. The study of emotion and affect have become increasingly important in a variety of disciplines, particularly with the emergence of affect theory in literary criticism. Even the 2021 Netflix series, The Chair, has a throwaway line about affect theory. And so Simpson’s book, among other things, represents a trickling down of affect study to international law, the “last of the humanities” in a sense other than what he intended. International relations and political theory have already witnessed a rise in attention to emotion and affect. In their 2014 essay in International Theory, Emma Hutchison and Roland Bleiker observed, “It has even become common to speak of an ‘emotional turn.’” [492] Of course, they acknowledge that fear and anger had long played a role in international relations, especially among international relations realists. But they want more, especially to address the prevalent “rational actor paradigm.” [495] Renée Jeffery’s Reason and Emotion in International Ethics and Andrew A.G. Ross’s Mixed Emotions: Beyond Fear and Hatred in International Conflict, both appearing in 2014, explicitly work against what Jeffery calls “the cult of reason and rationality” [3] and Ross calls “intellectualist conceptions of human agency.” [viii] In addition, both Jeffrey and Ross urge going beyond the obvious emotions, Ross urging that “standard emotional categories—such as hatred, anger, fear, joy, and empathy—are of limited usefulness when studying real-world social environments.” [2]

International law, with its own intellectualist and rationalist tenor, may not be working with the same rationalist disciplinary traditions that weigh on international relations and politics scholars, but it has its own rationalist legal fictions. And this is where affect studies could prove particularly fruitful. Simpson, with his immense sophistication in the humanities, is well aware of affect studies. If he only asks whether international law is subject to “cruel optimism” [4] without conveying the premise of Lauren Berlant’s Cruel Optimism, its identification of desires that impede one’s flourishing, Simpson draws a good deal more from Stephen Ahern’s Affected Sensibilities: Romantic Excess and the Genealogy of the Novel, 1680-1810. And Simpson, for example, provides a parenthetical about the relationship of emotions and feelings. [33] Literary scholars are often keen to distinguish between emotion and affect, or, as Sianne Ngai does in Ugly Feelings, between emotions and moods that lack “an explicit occasion or object.” [179] Indeed, Ngai is interested in “a new set of feelings—ones less powerful than the classical political passions,” [5] so her book on “ugly feelings” focuses on the likes of envy, irritation, anxiety, and paranoia. And that focus is well worth absorbing into international legal study. With the current split screen of the war in Ukraine with all of the intense emotions summoned by the horrific news and images displayed to us, it may be hard to think about the need to attend to lesser feelings along with the pervasive Stimmung of Hans Ulrich Gumbrecht’s Atmosphere, Mood, Stimmung, but they too are part of the larger picture of international law.

As I have mentioned, Simpson is primarily concerned with the sentimental life of the international lawyer. Lucy Alford’s Forms of Poetic Attention introduces us to a range of transitive and intransitive forms of attention, and, just in discussing the degree an object of attention is focalized, talks of scale, intactness, and resolution; and Alford addresses contemplation, recollection, vigilance, resignation, idleness, and boredom. But in addition to all of these modes of attention, Alford separates the subjects of attention, significantly the poet and the reader. It is that separation that would be helpful for Simpson, an urging to go beyond the sentimental life of the international lawyer to that of all who are involved in work of international law. Simpson is, of course, addressing his disciplinary colleagues and is offering a range of sentimental attitudes, such as his important use of Peter Sloterdijk’s Critique of Cynical Reason with its bodily Diogenes-inspired, anarchic cynicism. But Simpson’s book should invite us to investigate as well the sentimental life of all who are wrapped up in the study of international law.

I would like finally to bring Katie Kitamura’s recent novel Intimacies into conversation with Simpson’s Sentimental Life. The narrator/protagonist of Kitamura’s novel is a newly arrived translator to an unnamed international criminal court in The Hague. Her novel is almost a class in the experience of affects, in fact, combined affects, so that her characters may walk “with both eagerness and apprehension.” [191] And when a man invasively puts his arm around the narrator’s waist, she relates that his ”touch was damp and somehow sticky, even through the layers of my clothing.” [36] Her feeling of violation is palpable. In addition, we have a translator, an indispensable cog in the machinery of an international criminal court, and Kitamura relays the translator’s perspective—informed by interviews with international legal translators although as readers we do not know where Kitamura’s imagination takes over. Kitamura’s translator tells us that in a certain point in translation, “you no longer understand the words you are saying . . . I’m so focused on the minutiae of the session that I lose track of the larger story. I couldn’t tell you at the end of a session what’s taken place or what’s actually been said.” [146] Kitamura’s translator also relates the importance of focusing on court terminology that was “both specific and arcane.” This was needed because “there were great chasms beneath words, between two or sometimes more languages, that could open up without warning.” [13] Here Kitamura has entered into discussion with translation theorist Emily Apter’s depiction of the permutations and problematics of untranslatability, as in her Against World Literature: On the Politics of Untranslatability. In essence, Kitamura provides a number of leads that I would love Simpson to follow. In any case, Simpson’s Sentimental Life of International Law is an extremely evocative invitation for us to delve deeper and more widely into the sentimental life of international law.

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