Symposium on The Sentimental Life of International Law: The Dangers of Sentiment

[Simon Stern teaches law and English at the University of Toronto. He is a co-editor of The New Rambler Review and Critical Analysis of Law. With Robert Spoo, he is editor of the Law and Literature series published by OUP. His current research focuses on the history and theory of legal fictions, and the history of cross-examination.]

No sooner has Gerry Simpson’s The Sentimental Life of International Law: Literature, Language, and Longing issued from the press than one hears rumors of Jonas Bens’s The Sentimental Court: The Affective Life of International Criminal Justice. Is international law having a Hallmark Minute? If, as the jurisprudes keep reminding us, candor is dandy, can we now reply that affection is also effective, that fondness has its own forensic force? The sentiments suffusing these books are not those of the greeting card and the holiday romance; instead, they speak to the affective dynamics that obtain among parties, judges, lawyers, and law professors, in contexts that explore “the relationships between feelings and judgments” or offer “hybridised accounts of cognition and feeling” (41). For Simpson, one of the most provocative testing grounds and analogies for studying these relations comes from the eighteenth-century novel of sentiment, exemplifying as it does “four dangers associated with sentimental failure: sentimental excess, simplicity, solipsism and de-politicisation” (43).

These dangers, problems, or anxieties are also famously associated with the form of the sentimental novel. One of the paradigmatic contributions to the genre, Henry Mackenzie’s The Man of Feeling (1771) (discussed in Simpson, p. 51), presents itself to the reader in an elaborately mediated narrative mode: we are reading a partial, fragmentary manuscript written not by Harley (the Man of Feeling) but about him, a manuscript saved from destruction by a curate’s intervention. As Katherine Binhammer explains, “When we arrive at the primary diegesis in medias res (since the manuscript exists only in incomplete fragments) Harley’s story is further distanced by the discovery that the narrator is not the hero but a man referred to by the curate as “the Ghost” who left the manuscript at a farmer’s house. …  Harley’s sentimental innocence is kept at a distance while the narrator is positioned as cynically knowledgeable about the ways of the commercial world” (Binhammer, Downward Mobility: The Form of Capital and the Sentimental Novel (JHUP, 2020), 93-94). The penchant, in sentimental fiction, for the fragmentary and the incomplete offers a means of encouraging and counteracting the four dangers Simpson considers. The same applies to the genre’s fascination with narrative distancing, typically achieved by resort to editorial insulation and the use of interpolated stories, with an emphasis on the teller’s gestures and the hearer’s reactions. By presenting a story-within-a-story along with the physical responses it engenders, the narrative imagines, in an embodied example, the relations between “feelings and judgments” and offers a “hybridised account of cognition and feeling.” The narrative mode separates the book in the reader’s hand from the scenes described within, allowing the characters to court all the dangers that Simpson considers, and inviting the reader to contemplate the scene as both a participant and a spectator. Through its form, the fragmentary text creates a way for the reader to appreciate the picturesque ruin in aesthetic terms, and to observe, from a distance, the affective dynamics enacted in the plot.

What if we were to consider Simpson’s engagement with the sentimental novel as an incitement to think more seriously about the formal aspects of international law’s texts and conflicts? Lawyers are notorious for their dedication to ensuring that all is complete, coherent, and comprehensive, and their abhorrence of any fragmentary, patchy matter that comes their way. Discover a void and you can be confident that a law professor will hasten to the scene, wielding a magnifying glass and a metric, and intoning that famous first line, “This article fills a gap …” To be sure, every trial is necessarily incomplete, just as no treatise can be truly comprehensive, but these truisms describe gaps that occur despite the lawyers’ best efforts, and they hardly illustrate the Janus-faced disposition that Binhammer captures. Yet there are various legal texts—some more famous than others—that exhibit something like this disposition. Consider Coke on Littleton, that most Tristram Shandy-esque of treatises, which saturates every page with an editorial apparatus that dwarfs the text, while pursuing all manner of tangents in the notes, like Kinbote in Nabokov’s Pale Fire.

“A somewhat rambling commentary,” one scholar called it, “an omnium gatherum from Coke’s lifetime of reading … displayed helter-skelter” (Arthur E. Sutherland, The Law at Harvard (Harvard UP, 1967, p.12). Lord Mansfield was more brusque: “uncouth [and] crabbed.” Coke’s text exhibits, perhaps unwittingly but still suggestively, a stance that Simpson’s analogy could allow us to perceive in a new way—as modeling an affectively charged attitude towards Littleton’s Tenures (and the common-law mind Coke uses it to illuminate) while also creating enough distance from the text to produce a hybridized account of cognition and feeling akin to the others Simpson discusses. Andrew Amos undertakes a similar exercise in Ruins of Time Exemplified in Sir Matthew Hale’s History of the Pleas of the Crown (1854)—a book whose title says it all. Through an almost microscopically close reading, accompanied by numerous citations to classical and British literature, Amos demonstrates the impossibility of translating Hale’s work into a coherent vision of criminal law, yet his point seems to be that it is worth contemplating the exercise itself (see Lindsay Farmer’s recent discussion).

Notably, these works by Coke and Amos represent a particular kind of engagement, striving at once to be faithful to the source and to give a critical response to it, in a format that reproduces much more of the text than we usually find in academic commentary. Whether the canon of international law offers analogous examples is an open question. Perhaps some other works that could produce a similar effect are texts that make a point of announcing their fragmentary status, such as Friedrich von Gentz’s Fragments Upon the Balance of Power in Europe (translated into English in 1806) or Sir William Stirling Maxwell’s Napoleon’s Bequest to Cantillon: A Fragment of International History (1858). The fragmentary mode, whether the effect of editorial management or simply the form in which the author presents the materials, seems to have a special capacity for inspiring the mix of close engagement and reflection that can exemplify and answer the dangers that Simpson associates with sentimental failure.

This approach supposes that the dangers are inevitable, and that instead of imagining we can avoid them, we might do better to accept them and make them an object of study. But it’s also possible that the combination of failure and analytical distance sponsored by the sentimental novel does not readily translate into the classroom, one of the primary sites for Simpson’s concerns. When describing his worries, he mentions “the lure of sentimental indulgence (tears, melodrama)” and the countervailing determination to “embrace emotional austerity” that one might yield to when “teaching a class on, say, the law of war crimes.” It’s the problem of going to either extreme that bothers him, the fear of “overcompensating for dryness by dwelling on the unspeakable.” The sentimental novel enables a dual perspective that will already be familiar in method to most readers, even if this particular example is not. This view supposes that there can be no happy medium between sentimental excess and emotional austerity, and that attempting to find that perfectly pitched disposition is misguided. But perhaps there’s a difference between an approach that suits scholarly needs and one that answers the pedagogical needs Simpson mentions. Perhaps the sentimental novel simply cannot offer a useful model for the latter concern. But that’s why it’s worth posing the question in the first place: one of the necessary risks of a provocative analogy like this one is the possibility that it might lead to failure.