This essay is part of a symposium on Gerry Simpson’s The Sentimental Life of International Law. All contributions to the symposium can be found here.
Gerry Simpson has written what he is pleased to describe—tongue firmly placed in cheek—in the alternative as “the most useless book in the history of international law,” presumably saving any timid would-be-readers the trouble of checking for themselves. What the intrepid rest of us do get instead are six chapters showcasing in typical Simpsonian fashion what is possible in writing international law: sensitive lyrical expression, literary and doctrinal finesse, geopolitical wisdom, and that universal patience with everyone that is borne of historical knowledge (see Simpson 2004 and Simpson 2007 for earlier examples). The sophisticated, rich, and diverse chapters start “with a plea for new international laws” that is inflected in the “proverbial rather than the philosophical” tradition, if “tradition” itself is indeed apposite: “So, this book belongs in the tradition (but it can’t be anything as po-faced as ‘a tradition’) of the proverbial rather than the philosophical: a clandestine, barbarian international law of misreadings, perverse readings, marks, jokes, slips, accidents, (unintended) verbal resonances.”
Following on from that remarkable sentence, method therefore—rather than tradition—is what this book’s proverbial approach is about, or so this review will contend. That method is explicitly and implicitly influenced by Sigmund Freud’s psychoanalysis given that that Freudian psychoanalytical approach in its way sought “to divine secret and concealed things from despised or unnoticed features, from the rubbish-heap, as it were, of our observations” (Freud 1953: 222). This review’s contention therefore is that one of those basic and fundamental features in international law is the metaphor of the “city” standing in for civilization of which Simpson’s “barbarian international law” threatens, or better, is resolutely set in opposition to the illegal fiction that barbarism and barbarousness are and were synonymous.
Civilization first rears its head here in the unusually substantive footnote appended to the extract quoted above where Simpson describes his approach to his subject as “indirect.” What would be the payoff in following Simpson down this promised circumlocutory path if all the while we took notes on the margin(s) of his work like some form of self-styled, self-taught, post-modern glossator? Plenty, if you read on.
Civilization, of course, is a core foundational myth of international law’s standard setting distinguishing itself and its followers as it does from barbarousness and barbarians respectively in a way that privileges Civis, the city and its dwellers. The West and consequently its law(s) historically spread through a mix of guile and force—conquest—are, as Leo Strauss pointed out, a tale of two forever incompatible cities, Athens or the legacy of Greek Antiquity and Jerusalem standing in for its secularized Judaeo-Christian heritage. Yet, Walter Benjamin reminds us that: “There is no document of civilization that is not at the same time a document of barbarism.” Further, Freud’s discussion of civilization (and its discontents) sees the individual’s freedom pitted against social conformity in the context of the city. Karl Marx too cited Shakespeare’s Timon of Athens to critique money’s “distorting power both against the individual and against the bonds of society.” However, radical Italian philosopher Giorgio Agamben has argued extensively that the political paradigm of the West is not the city or “Athens” but the concentration camp or Auschwitz. Whether all these disparate positions really can be read together productively haunts the present inquiry. What if we brought other cities, say Helsinki, Port-au-Prince, or Ouagadougou into the core of the foundational myths guiding how we think about and hence do international law. Would that decolonization be sufficient to redeem international law from its original sins and thus retain the city and its citizens in their canonical status? Perhaps. Perhaps not. In staging a dialogue between law, literature, and the humanities, though, Simpson’s body of work demonstrates that in any event the stakes are well worth the effort.
In the second chapter, the eponymous “the sentimental Lives of international lawyers,” Simpson melodramatically gestures to “international law as the ‘last of the humanities’: the final resting place in an over-professionalised curriculum for a relatively unfettered and playfully serious account of the world around us—an account that does not entirely give itself up to the demand for absolute utility.” Although Agamben is not in Simpson’s bibliography, their approach to utility or use does share similarities. Jessica Whyte points out “Agamben’s earliest account of use is concerned to examine the possibility of a new relation to things that consists neither in a utilitarian conception of use nor in the logic of exchange” (Murray and Whyte, 194). Agamben here and elsewhere is deeply influenced by Benjamin who inspirationally wrote of the possibility of “things are freed from the drudgery of being useful.” Here it seems both Simpson and Agamben pit “use” against “jus” as it were. For Simpson, it “is intended to be part of a broader project to open up the space in which international lawyers can live and work” whereas for Agamben it would on the contrary be to paralyze the apparatus of law for good through the notion of play.
That leads us to chapter three, “international law’s comic disposition,” which inquires into “how the ironic international lawyer [(the self-doubting, agonistic jurist)] as distinct from ‘a kynical international lawyer [(the defiant, disinhibited, lawyer-rebel)]’might experience her practice or how she might try to chart a passage for laughter—indeed, live an ironic life—amid the dangers of sentimentality (against which ironic laughter or the comedy of forgiveness seems a possible defence) and tastelessness (with which blasphemous laughter must always figure).” Relatedly, in Taste Agamben notes that: “The word ‘sapiens’ [wise man] is derived from ‘sapor’ [taste]” hence thoroughly establishing its anthropogenetic credentials (Agamben, Taste, 4). Linguistically speaking, this human creature of language (a category including ironic international lawyers but not of course being wholly made of this) is poised between meaning and expression or between semantics and semiotics or poetry and philosophy and perhaps even history and international law:
The fracture between signification and knowledge —the semiotic and the semantic—is not in fact something produced once and for all outside of the human, but instead is a fracture of this very same subject of knowledge: man as Homo sapiens. Since, as a speaking and thinking being, the human is held between signification and knowledge, its cognition is necessarily split and the problem of who knows knowledge (the problem of the subject of knowledge) remains the fundamental question of every epistemology.
The upshot of this for Agamben though is that “these fractures are so originary one could say that they constitute Western thought not as sophia [wisdom] but as philo-sophia [love of wisdom].”
The fourth chapter “‘bluebeard on trial’: the experience of bathos” then builds “on the ideas of irony . . .” by examining the field of international criminal law through the device of bathos and the way it seems to organise the relations between the juridical convention of precedent and the politico-legal rhetoric around “unprecedentedness.” This inquiry into “the law of oblivion” is effected in order “to offer another way of doing international law in the redemptive, practical vein [to] construct a workable sentimental-juridical response to the remembrance of political violence” because “oblivion is not always quite the appropriate response.” Here Agamben’s analysis of Aristotle regarding the custom of granting amnesty following civil war is again apposite (Stasis, 20–21):
the invention of amnesty . . . with respect to civil war is thus the comportment most appropriate to politics. From the juridical point of view, stasis thus seems to be defined by two prohibitions, which perfectly cohere with one another: on the one hand, not participating in it is politically culpable; on the other, forgetting it once it has finished is a political duty.
Rather provocatively, this is “just the opposite, that is to say, of what civil war seems to be for the moderns: namely, something that one must seek to render impossible at every cost, yet that must always be remembered through trials and legal prosecutions” (Agamben, Stasis, 22). Simpson’s counter would be the last word in international criminal law:
The high-point of impunity—perhaps, also a turning point—came when Hitler celebrated, and provoked the end of, this impunity with his famous question: “Who remembers the Armenians?” This was, more or less, the sort of amnesia demanded by the Treaty of Munster back in 1648:
That there shall be on the one side and the other a perpetual . . . Amnesty, or Pardon of all that has been committed since the beginning of these Troubles . . . but that all that has pass’d on the one side, and the other . . . during the War, shall be bury’d in eternal Oblivion.
International law was—to restate the point—the law of oblivion.
That chapter is followed by the explicitly methodological fifth chapter, “an uncertain style: after method in international legal history.” It is a reflexive “encounter between two actual disciplines: (global) history and (international) law” staged in order to suggest that international lawyers “look at history anew. . . . with sympathy for the choices and milieux of our protagonists and . . . a greater sensitivity to the detail of their social, cultural and political lives and their worlds of struggle . . . with a refusal of the easy traditions of linearity and expansion and unity. . . . in favour of a setting down of complexity in its fullness.” Hear hear. A key example Simpson cites is how “the dark implications of 19th-century colonialism are present in [Antony] Anghie and in [Carl] Schmitt (though the darkness has to be read into the latter)” given: “For Anghie, the problem of international law in this period lies not in its failures but its successes” whereas for Schmitt it presumably was the opposite.
Which takes us to the penultimate sixth chapter on “a declaration on friendly relations.” It “reconstruct[s] thin (e.g. amity, laws of friendly relations) and thick (drawing on Schmitt, Rawls, Reagan–Gorbachev) laws of friendship out of the existing material of international legal practice and doctrine as a prelude to constructing, afresh as it were, a concept of lawful friendship that might be useful in invigorating—might even have a bracing effect on—the study and practice of interstate diplomacy.” That eminently sensible approach is prefigured in a wistful footnote hoping for “laws of friendly relations to come” with a promising taxonomy of various and varied cities: “The laws of enmity (Geneva, The Hague), crime (Rome, Nuremberg, Tokyo, Kampala), piracy/ terror (New York, Washington) and neutrality (Nyon, Vienna).” This, while not exactly utopian like its following chapter, is nonetheless a promising, simple, and practical way forward as a meaningful orientation for international legal scholarship.
The fifth chapter introduces the seventh and final chapter’s approach to “international law’s utopian aspect through the practices and intellectual apparatus of gardening.” In “gardening, instead, or, of pastoral international law,” Simpson’s twin adjectives, pastoral, and utopian together with their Nietzschean “mobile army of metaphors”—Edenic, heavenly, bucolic, paradisiacal, idyllic, Arcadian, etc – implicitly recall even if only sotto voce the walled garden of biblical Eden especially in its distinction from the wilderness of Eden itself. In that telling, humans were originally born in an already divinely cultivated garden and were then by divine judgment cast out into the wilderness as opposed to being born in the wilderness and then had to cultivate a garden through their own efforts and so on. In this narrative what marks us as demonstrably living human beings (the imperative need for life’s necessities like food, clothing, shelter, medicine) is re-read and re-presented as a demonic curse.
Simpson points out that “When it comes to projected futures and imagined pasts, Marx and Rousseau are (at least) two of our interlocutors.” While engaging with Hungarian Marxist intellectual GM Tamás, Jessica Whyte goes on to identify two types of readers of Marx, “Rousseauists” who valorize an “actually existing” working class, and those readers of Marx who see “the ‘Faustian-demonic’ expropriative power of capital as the condition of possibility of a class ‘with nothing to lose but its chains’” (Whyte 263). For Tamás, “Marx is the poet of that Faustian demonism: only capitalism reveals the social, and the final unmasking, the final apocalypse, the final revelation can be reached by wading through the murk of estrangement which, seen historically, is unique in its energy, in its diabolical force” (Tamás 230). Marx’s utopia is therefore both Faustian and Edenic in origin. Although he was not particularly enamored of liberal rights especially as propounded by the bourgeoisie, he nonetheless championed a species of freedom in touting that everyone should have life’s necessities automatically availed to them by society for them to achieve their potential (see Ross 119–120). A utopia worth striving for that is well within reach.
Because in this book Simpson tries “to do less of the interring and disinterring, and instead engaged in acts of defamiliarization as a way of establishing the lifelessness of some of international law’s familiar routines and the liveliness of its unfamiliar subterranean existence,” his work is far too subtle and nuanced to be trapped between “the incompatible claims of Jerusalem and Athens” (Strauss). Perhaps that might be explained by the thesis that—given Simpson has in many ways written in the wake of Martti Koskenniemi’s historical turn in international law, who in turn was heavily influenced by Jacque Derrida’s deconstruction—Simpson’s work is firmly located in a historically neutral “Helsinki” whose neutrality, as any international lawyer with a historical sensibility in 2022 will recognize, is for the time being simultaneously unfamiliar, lifeless, and disinterred.
Giorgio Agamben, Stasis: Civil War as a Political Paradigm, trans. Nicholas Heron (Stanford, CA: Stanford University Press, 2015).
Giorgio Agamben, Taste, trans. Cooper Francis (London: Seagull Books, 2017).
Signmund Freud (1953), “The Moses of Michelangelo,” in The Standard Edition of the Complete Psychological Works of Sigmund Freud, vol. 13, (London: Hogarth Press, 1953), 211–36.
Alex Murray and Jessica Whyte, ed., The Agamben Dictionary (Edinburgh: Edinburgh University Press, 2011).
Lachlan Ross, “On the Two Metamorphoses of Human Activity in Marx,” Cosmos and History: The Journal of Natural and Social Philosophy 15, no. 1 (2019): 117–41.
Gerry Simpson, Great Powers and Outlaw States (Cambridge, UK: Cambridge University Press, 2004).
Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Cambridge, UK: Polity Press, 2007).
Leo Strauss, “Jerusalem and Athens: Some Introductory Reflections,” Commentary 43 (June 1967): 45–57, https://www.commentary.org/articles/leo-strauss/jerusalem-and-athens-some-introductory-reflections/.
M. Tamás (2006) “Telling the Truth about Class,” in “Telling the Truth,” ed. Leo Panitch and Colin Leys, special issue, Socialist Register 42 (2006): 228–68.
Jessica Whyte, “Karl Marx,” in Agamben’s Philosophical Lineage, ed. Adam Kotsko and Carlo Salzani (Edinburgh: Edinburgh University Press, 2017), 262–271.