Pluralism and the Alegitimacy of International Criminal Law

Markus D. Dubber is Professor of Law and Director of the University of Toronto’s interdisciplinary Centre for Ethics. Much of Markus’s scholarship has focused on theoretical, comparative, and historical aspects of criminal law.

Stewart & Kiyani’s sweeping article, The Ahistoricism of Legal Pluralism in International Criminal Law, makes an important contribution to the literature on international criminal law, and many other topics besides. It covers so much ground that I’m in no position to comment on much, or even most, of it, but I’ll spell out a few of the thoughts that arose while reading this stimulating paper.

Historical analysis as critical analysis. Given my own (mis-)adventures in historical analysis of law and historical methodology,[1] it’s no surprise that I wholeheartedly agree with the authors that international criminal law, and in fact all of criminal law (comparative and domestic, regional and parochial) needs more history, to paraphrase Christopher Walken. The authors not only insist that it’s worth looking into the history of legal norms but also aren’t shy about putting that historical inquiry to critical use. It’s not just that historical analysis is worth doing for its own sake (I certainly learned a lot from their article) but this historical analysis then allows them to formulate a critique of a position(s) they describe as “pluralism.” And so we see, for instance, that Japanese criminal law is German criminal law and that, in fact, Japanese criminal law swallowed German criminal law whole for a specific (power-political) reason in a specific historical context, as a kind of exercise in self-colonization or preemptive imperialization. I have no idea whether this story holds water, but it makes sense on its face, and certainly enough sense to suggest the need for further inquiry and, more important for the authors’ purposes, the need to take a breath before treating Japanese criminal law as specifically (and characteristically? genuinely?) Japanese criminal law, whatever that would mean, and whyever that would matter.

Pluralism. Why it would matter, according to the authors, is: pluralism! “Pluralism,” in the authors’ telling, comes in a descriptive and a normative flavor. Their paper takes issue with both versions, though the second—normative—one takes the brunt of their critical question-raising (which, in the end, politely pulls its punches and, as a result, never quite evolves into an all-out critique). The descriptive version is “ahistorical” and, more important, misleading because international criminal law isn’t always as pluralistic as it might appear: if historical analysis shows that, to stick with our example, Japanese criminal law is German criminal law then what looks like pluralism is really just duplicatism: German criminal law by different names. But, leaving that aside, even if we maintain—descriptively—a distinction between Japanese and German criminal law (they are, after all, not identical!), then the supposed fact of pluralism doesn’t translate into the desideratum of pluralism. For it turns out that local doctrinal norms may be poor indicators of local social norms because (ignoring a more basic question regarding the relationship between—artificial?—doctrinal norms and—real?—social norms) they may not be truly local, all the way down; upon closer inquiry of the historical kind, they instead turn out to be foreign, alien, “irritating,” “partial,” “dysfunctional.”

International criminal law. But why does pluralism matter? Why is it a good thing that pluralism is a good thing in international criminal law? I take it the apparent interest in, and professed preference for, legal, social, cultural, etc. pluralism (or “diversity”) has something to do with the existential anxiety of international criminal law. Is it legitimate? Is it imperialistic? Is it racist? Socially, cultural, politically, economically, legally hegemonic? Since self-government (most obviously by personal consent), the familiar mode of legitimation of modern (liberal) law, including—at least in theory—modern criminal law, isn’t available in the self-made sui generis, stateless, asovereign, and nonhierarchical realm of international criminal law, its oppressive potential, I suppose, is thought to be mitigated (rather than acknowledged and justified) by showing respect for a vague notion of “pluralism.” “Pluralism” here might mean nothing more than not universalism or not Western/Northern imperialism (leaving conveniently unclear what it is, rather than what it is not). Pluralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.

This anxiety about legitimacy turns out to be both appropriate and inapposite, at the same time. Appropriate because there is a very real problem with a system of international criminal law that threatens and inflicts penal violence on persons, insofar as that system holds itself out a system of law in a very particular, liberal, Western, enlightenment sense, namely in the sense of a then-radically new mode of governance grounded in the conception of the subjects and objects of penal power as persons marked by, and only by, their capacity for autonomy, or self-government (rather than their place on some status hierarchy or other, e.g., patriarchalism). This enormous, and prima facie unmeetable, legitimacy challenge is not unique to international criminal law; it applies to any (but only any) political-legal regime that regards itself as committed to this conception of law, domestic, regional, international, global.

Inapposite insofar as international criminal law is, in fact, a misnomer.[2] Instead of conceptualizing international criminal law as a system of law, it may be useful to regard it as a regime of police, where police is understood as that long-pedigreed patriarchal mode of governance on which the modern conception of law cut its teeth during the long turn of the eighteenth century. In this (historicizing…) light, international criminal law appears as an alegitimate regime of discretionary governance in which technically and supposedly asovereign subjects exercise penal power over categorically distinct—and inferior—objects (pirates, ex lex, outlaw, vogelfrei, hostis humani generis, all vanquished, none victorious, evil creatures beyond the pale, for whom punishment under international criminal law is a merciful alternative to a far worse fate, etc.).

Incapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about “pluralism.” Sensitivity to pluralism, in this light, appears as part of a general attempt to obfuscate and thereby to manage, rather than to address, the fundamental legitimacy crisis of international criminal law as law…ironically, by highlighting the superior character and benign intentions, if not the benevolence, of its subject-protagonists, however unconstrained by, say, formal “principles of legality” their penal actions may be.

[1] E.g., Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005); Markus D. Dubber, “Legal History as Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law,” in Oxford Handbook of Legal History (Markus D. Dubber & Christopher Tomlins eds., forthcoming 2018) [SSRN].

[2] See Markus D. Dubber, “Common Civility: The Culture of Alegality in International Criminal Law,” 24 Leiden Journal of International Law 923 (2011) [SSRN]; see generally Markus D. Dubber, The Dual Penal State (forthcoming 2018).