The sentimental life of
international law
Gerry Simpson*
To mark the launch of the London Review of International Law, the editors
invited Gerry Simpson, Kenneth Bailey Chair of Law at Melbourne Law School
and Visiting Professor of Public International Law at LSE, to deliver a lecture
at the London School of Economics on 28 November 2013. This article is based
on the lecture delivered on that occasion.
‘Reason is, and ought only to be the slave of the passions’
– David Hume1
‘. . . the emergence of the human rights culture seems to owe nothing to increased
moral knowledge, and everything to hearing sad and sentimental stories . . .’
– Richard Rorty2
‘Tears and laughter are, aesthetically, frauds’
– José Ortega y Gasset3
STYLE MATTERS
I am delighted to be delivering this lecture at the London School of Economics
to mark the launch of the London Review of International Law and I would like
to thank the editors for their kind invitation. This is partly a lecture about style
and, so, naturally, I worried about the appropriate style to adopt for this sort of
lecture. It seemed to combine, after all—and in ways that I thought might prove
*
Melbourne Law School and London School of Economics. Email: [email protected]. Mark
Antaki, Gary Cazalet, Raimond Gaita, Barry Hill and Fleur Johns each offered illuminating thoughts,
as did two sympathetic and thoughtful anonymous readers. Some of the central ideas were formed in
conversations I had with Kirsty Gover.
1
D Hume, A Treatise of Human Nature (Clarendon Press, 2007) [1738] 266.
2
R Rorty, ‘Human Rights, Rationality, and Sentimentality’, in Truth and Progress: Philosophical Papers
(Cambridge UP, 1998) 167, 172.
3
J Ortega y Gasset, The Dehumanization of Art, and Other Writings on Art and Culture (Doubleday,
1956) 25.
London Review of International Law, Volume 3, Issue 1, 2015, 3–29
doi:10.1093/lril/lru013 Advanced Access publication 16 December 2014
ß The Author 2014. Published by Oxford University Press. All rights reserved.
For permissions, please email: [email protected]
4
Simpson: The sentimental life of international law
difficult to navigate—pre-dinner speech, draft article for the London Review,
book launch, public lecture, elegy and keynote address.4 The whole thing might
be undone by its plural ambitions. At one point, on the plane from Singapore to
London, with 200 new Hollywood movies flickering lifelessly onscreen, and
while everyone around me slept aggressively in their pale dun blankets and
grey eye masks, I found myself sitting up rigidly, staring into space, thinking
about the editors of the London Review of International Law and wondering
what they might want of me. We were crossing the Straits of Malacca; Heathrow
was 6 532 miles away. We were cruising at 33 000 feet. I had 11 hours and
20 minutes to work it out.
The invitation helps. It advertises this as a ‘celebratory’ speech. And I do
want to begin a bit off topic by celebrating international lawyering. About five
years ago, Peter Goodrich lamented international law’s ‘scholarly apathy’, and
this is the picture of international law sometimes offered from inside and
outside: a field of study that has lost its mooring, lacks intellectual courage,
obsesses about its status and engages in empty game-playing.5 But I neither
experience nor encounter ‘apathy’ when I read, say, the current generation of
committed and brilliant young international lawyers, or when I teach the
roughly 100 students who choose to study this apparently benighted subject
each year at LSE, the Australian National University or Melbourne. When I pick
up the pages of the Leiden Journal of International Law or the London Review of
International Law or recent books (Unruly Law, Events in International Law), I
marvel at an assuredness of tone, a sense of purpose, a sensitivity to political
effect, a striving for new forms of expression and a capacity to translate life into
scholarship.6
I will say a little about translation in this lecture. So, let me begin with a
translation. Deborah Cass, who taught international law here at LSE, was a fan
of The Iliad, and she particularly admired, and introduced me to, War Music,
4
This lecture is likely to become a chapter of a book that probably will be called either ‘The
Sentimental Life of International Law’ or ‘A Literary Life of International Law’, or something else
altogether.
5
Goodrich, in an account of the impoverished lives of international lawyers (nasty, brutish, solitary),
seems to be calling for a new ‘life of the law’, a law (‘a different and spectral law’) that is not just
words but a ‘scholarly, humanist discourse’ consummated or traced through ‘literary sensibility’.
P Goodrich, ‘On the Relational Aesthetics of International Law’ 10(2) Journal of the History of
International Law (2008) 321, 351, 324. I agree with the telos but Goodrich seems to describe an
international law I don’t fully recognise. Have international lawyers really ‘vacated’ the public sphere
(Anne-Marie Slaughter, Harold Koh, Philippe Sands, Kevin Heller)? Have they really ‘peddle[d] a
variant form of positive law’ (ibid 322) (Tony Anghie, Sundhya Pahuja, Philip Allott)?
6
F Johns, Non-Legality in International Law: Unruly Law (Cambridge UP, 2013); F Johns, R Joyce &
S Pahuja (eds), Events: The Force of International Law (Routledge, 2011).
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Christopher Logue’s modern re-telling of Homer.7 (There is an other-worldy
recording of Logue reading his translation in a collection called Audiologue.8)
At the beginning of Book 16 of Logue’s account, with Troy under siege but
the battle evenly poised, Patroclus, ‘comes crying to the Greek’.9
Achilles teases him: ‘Why tears Patroclus? . . . Someone is dead, Patroclus?
Your father? Mine?’
Patroclus is affronted: ‘You know Odysseus is wounded? Orontes too—his
thigh: King Agamemnon even. Yet, still you ask: Why tears’.
Tonight I want to restage this dialogue by sketching a very tentative ethnography of the sentiments (or emotions) in international law.10 Where are
they found? How are they understood by practitioners who experience them?
Who do they happen to? And in what forms? How are they arranged? What do
they do? What are the sorts of misgivings we might have about international law
as sentimental project? I position all of this in a familiar relationship between
reason and sentiment before prospecting two versions of ‘the sentimental’: one
a place-holder for a catalogue of pejorative associations, the other offering the
possibility of a more nutritional form of emotional life for our work. In the
end, I make a plea for the sentimental life of international law and against an
7
C Logue, War Music: An Account of Books 16-19 of Homer’s Iliad (Faber & Faber, 1988).
8
C Logue et al., Audiologue: A Seven CD Set of Recordings 1958-1998 (Unknown Public, 2001).
9
Logue (1988) 7.
10 I do not intend to spend a great deal of time here working through the distinctions between feelings,
sentiments, passions and emotions. That will no doubt come later, in a larger project. But I do think
there are very important distinctions (or at least associations worth preserving through such distinctions). Provisionally, then, I have chosen ‘sentiment’ because of its relationship to the Scottish
enlightenment and the sentimental novel, because of the way in which the word makes explicit a
relationship between intellect and feeling, and because—though this, too, has to be explored elsewhere—sentiment is both style and substance in ways that I find intriguing (we can think here, of the
way in which sincerity or authenticity might be undone by sentimental expression (‘I love you more
than words can express’ is an ironic example of this) and the way in which readers or auditors will
sometimes excuse clumsiness in style by referring to ‘underlying sentiments’). Of the others, the
word ‘feelings’ tends to suggest an immediately experienced physical sensation though we have
feelings about politics or social life that imply a combination of emotion and reason. Think
about the way we are taught at school not to say ‘I feel’ when we are understood as meaning ‘I
think’. ‘Emotions’ are defined in the Shorter OED as ‘disturbances of mind’, an idea I like, and will
pursue. Shorter Oxford English Dictionary (Oxford UP, 1993) (OED) 339. In the case of ‘Passions’,
see my forthcoming introduction to an edited volume to be entitled The Passions of International
Law. The word ‘passion’ is suggestive in different ways: some common derivations include the idea
of physical agitation (perhaps, sexual), overwhelming emotion and the allusion to suffering, especially martyrdom, especially on the cross (The ‘Passion’ of Christ). On the other hand, one of the
literary examples of passion given in the OED is Virginia Woolf: ‘His passion was for the law’.
OED 2117.
6
Simpson: The sentimental life of international law
international law of sentimentality, for an international law of ironic tears
(or almost tears) but not teariness.
* * *
Let me begin by locating this project within a broader argument about the
centrality of style and idiom.11 It has become increasingly common to offer
a sense of international law as a language, or culture or collection of people
who call themselves ‘international lawyers’ and do things in particular ways
employing distinctive speech patterns or tics, and operating within an identifiable set of cultural mores.12 Critique, here, then turns international law against
itself, pointing to it as a way of thinking or a form of rhetoric or a diplomatic
language that forbids more emancipatory or dissident ‘forms of life’ or ways
of going about things—or just closes off a bit of our humanity.13 I would situate
my lecture this evening in this latter tradition.
A great deal turns, of course, on what we want international law to do (and
what it does is partly about what it does in the world and partly about what it
does for us), and my impression is that along with the dispute resolution and
the cultures of formalism and the language-games of diplomacy, some of us,
11 International law, as we know, can be a project of justification or sublimation. We are familiar, I
think, with the idea of it as a field of progress or rationality slowly extending its regulatory reach: a
bag of tricks, or assemblage of norms, designed to smooth inter-state commerce and diplomacy
(‘Lawyers nowadays—including international lawyers—are keen to proclaim the sophisticating and
humanising of modern law. They are proud that the law explicitly recognises the principle of the
so-called Rule of Law—the idea that took us centuries to establish—the idea that everyone is subject
to the law, even the law-makers and the law-enforcers.’ P Allott, ‘Five Steps to a New World Order’
Seegers Lecture, Valparaiso, Indiana, 2007). Almost as ubiquitous now, though, is a body of writing
arguing that international law is a critical tool to be deployed against poverty or mal-distribution or
Empire or malevolence, or against those very same progressive values that might be thought to have
consolidated empire or obscured poverty or misshapen our languages and so on. This second critical
idea then splits into two separate projects: the first of these is grounded in a belief in the power of law
to make amends somehow: for the state of the world or the excesses of capital or nationalism or war.
The human rights movement, for example, seems configured around this thought. The second
project requires a more insistent engagement with international law’s complicity in the very conditions it seeks to ameliorate or in the organisation of thought about the world.
12 For a full theorisation around this point see, P Bourdieu, Language and Symbolic Power (Polity,
1991). See, too, discussion in J Mowbray, Linguistic Justice: International Law and Language Policy
(Oxford UP, 2012) 4-8.
13 See, too, the important work of Mark Antaki who says at one point and in a similar vein: ‘The basic
idea is that our forms of life—not necessarily visible to, or palpable for, us—are bound up with our
language games—which we often play unwittingly. Allowing ourselves to become puzzled, even
arrested, by how we speak, may allow us to better ask who we have become.’ M Antaki, unpublished
paper on file with author.
London Review of International Law
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at least, are attracted to the idea that it might offer a shift in consciousness
(because that might allow us to make a clandestine approach on justice or
because it might help reverse millennia of empire, hegemony, indecency, and
lovelessness in public life). So, to offer an early example, when David Hume
describes ‘sympathy’ as that ‘which makes me concern’d for the present sorrows
of a stranger’, we must feel that a language that responds to those sorrows
through law could be useful.14 I have just come from Australia where ‘the
present sorrows of a stranger’ are barely visible in official circles and where
there is either a legal vernacular of abstraction (‘refugee claimants’) or a language of outright coldness (e.g. the recent insistence by the Minister for
Immigration, Scott Morrison, that Department documents describe distressed
children on boats coming to Australia as ‘illegals’).15
When it comes to shifts in language and consciousness, Philip Allott is
thinker-in-chief: ‘We make the human world, including human institutions,
through the power of the human mind. What we have made by thinking, we can
make new by new thinking’.16
More specifically, though, tonight’s talk comes out of a general preoccupation I have with the continuities and discontinuities of literary and juridical
accounts of life, and it explores (or, perhaps, in the first case, enacts) two
intuitions I have (though the latter is really the intuition of the 20th century).
The first is that we live in a period in which it is harder to unite literature, myth,
theatre, law and political life than it was, in, say, the classical period, and this
represents a loss for us.17
The second is that much of what’s interesting in political and everyday
life occurs off-screen, that surprisingly little is facially explicable and that the
informal (to render things sociologically) or the unconscious (to think psychotherapeutically) or the emotional (in its neurological, or philosophical or
affective dimensions) or the micro-political (to make a contrast with formal
legal arrangements) are largely obscure to us without quite a bit of effort and
that, as a consequence, our patterns of engagement can become paradoxically
14 Hume (2007) 248.
15 ABC Radio National, ‘Row over terms used to describe asylum seekers’, The World Today, 21
October 2013, available at http://www.abc.net.au/worldtoday/content/2013/s3873291.htm (last
visited 1 December 2014).
16 P Allott, Eunomia (Oxford UP, 2001) xxvii.
17 See M Nussbaum, Political Emotions: Why Love Matters for Justice (Belknap, 2013) esp. 257-75.
Perhaps this is, as one reviewer put it, simply wrong. Perhaps this lecture is an example of a tendency
operating in the opposite direction. I hope so.
8
Simpson: The sentimental life of international law
stultifying and familiar and, yet, also, obscure and muddy.18 A sentimental
life of international law (or, to put this differently, attention to the sentimental
lives of international law and international lawyers) might help us a bit here.
Even more specifically, I would argue that our sense of what a piece of international legal scholarship or teaching has achieved is bound up with a sense of its
literary style or, in a stronger version, that it is its literary style. Virginia Woolf was
once asked what her books were about. She responded by saying that they weren’t
about anything, they were the thing. We respond to style as a matter of aesthetic
judgement of course but also as a matter of feeling and sentiment.
Words in the right order make us feel differently about the world.
International law is, at its best, a matter of finding ‘better words’. 19
For better and worse, to talk in the languages of international law is to articulate a certain way of understanding, organising and sharing (or not sharing)
the world, and anyone attentive to the forms in which this occurs will find
unsatisfactory and disheartening those reductive descriptions of their own work
or the work of people they admire.20 That is why I turn in terror to the pages of
some text-books when they pay a perfunctory visit to that tiny, beleaguered
principality called ‘International Legal Theory’. Here, a whole generation’s
worth of human endeavour and literary style is cut down—often accompanied
by ‘a tin ear for irony’21—to a few superannuated phrases about ‘indeterminacy’ or ‘power’ or, worst of all, ‘cynicism’.22
Actually, while engaging in this little literature review, I discovered that
when it comes to ‘deconstructionism’ or ‘feminism’, text-book writers often
quote the views of other text-book writers instead of the original texts.23
18 This is related to the need for attentiveness. A point taken up by both Simone Weil, who said that
morality was a matter of attention and not will, and Arendt, who bemoaned Eichmann’s thoughtlessness. See I Murdoch, ‘Against Dryness: A Polemical Sketch’, 16(1) Encounter (1961) 16, 20 (I
thank Emily Kidd White for the reference to Murdoch: she was right, it was perfect). For Arendt, see
her series of essays ‘Eichmann in Jerusalem’ in the New Yorker in 1963. On micro-politics see MJ
Shapiro, ‘The Micropolitics of Justice: Language, Sense and Space’, 8 Law, Culture and the
Humanities (2012) 466.
19 See generally A Phillips, ‘Poetry and Psychoanalysis’, in Promises, Promises (Faber & Faber, 2000) 1.
20 In the past, I have been guilty of this myself but I decline to supply the footnotes to my own shame.
21 Raimond Gaita’s phrase, in R Gaita, ‘Literature, Genocide, and the Philosophy of International Law’,
in R Cruft, MH Kramer & MR Reiff (eds), Crime, Punishment and Responsibility (Oxford UP, 2011)
122, 125.
22 My current least favourite is ‘deconstructionist theories see law as a smokescreen for behaviour that
would have occurred in any event’. For reasons of etiquette and collegiality, I will not supply a
footnote here either.
23 There is a bit to be said about labels in general. One possibility is that at a certain point during a
process of community building words like ‘crit’ or ‘New Havenite’ make sense as ways of securing
space in a discipline or building collective forms of identity (something like this is happening now
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Remember: this is not just wrong or bathetic; worse than that, it misrepresents
a whole way of being and talking. It enacts, in other words, the very opposite
of what is being described.24
The broader thought, here, then, is that somehow cognition and affect are
enmeshed in ways that are familiar but, perhaps, underexplored.25 Raimond
Gaita told me a story once—attributable to Bernard Williams—about a philosopher who said to a colleague with whom he was writing a book: ‘Let’s first
get the content right. Later, you can add the style’.26
Now, it would be crazy and inane to ask someone to read a summary of a
short poem in lieu of reading it. But I want to suggest that all writing is a bit like
poetry in this regard.27 This is what makes translating poetry (something Philip
Larkin thought was pointless but then he did once say that he would like to go
to China but only if he could return to Hull on the same day) so difficult or only
with Critical Approaches to International Criminal Law) but then subsequently become prisons for
their practitioners. So, it might have been good to have ‘feminist international law’ in 1988 (an act of
self-identification, a call to arms) but not so good now (a way of reducing a vast body of work to a
single label, a neutralisation of political energy, a trap for the unwary).
24 Of course, it does not have to be this way; literary critics and reviewers can riff brilliantly off
particular texts: Barthes’ book on Balzac, longer than the short story it is, putatively, about, or
James Wood on Salman Rushdie’s Fury, much better and far shorter than the novel itself, and so on.
See R Barthes, S/Z (Hill & Wang, 1974); J Wood, The Broken Estate: Essays on Literature and Belief
(Jonathan Cape, 1999).
25 How might we understand the specific wrongs of, say, international criminal law? We might contrast
Elie Weisel’s Night with Primo Levi’s work. A lot of survivor memoir fails as literature and fails as an
account of the special wrongs of the Holocaust: see Gaita (2011). The whole history of horror and
survival seemed to be encapsulated in them. Gaita also talks about the translation of Levi. If it made
him ‘banal and sentimental’, would that matter if we could capture the underlying truth of Levi’s
account? Of course, sentimentalism could obscure the underlying truth of the account or at least its
compellability as witness testimony but the idea of stripping away literary artifice to get at cognitive
truth is surely a flawed account of how reading (or truth) works. The specific suggestion that the
former is ‘sentimental’ is made by Gaita (2011) 127.
26 It is not just people who don’t care about style who make this style/content error. It can work the
other way, too. In 1983, a young English barrister was entering the House of Commons. During the
election, a former LSE law student called Cherie Booth was the candidate for Margate in Kent. Her
father, a well-known British soap star, knew Tony Benn—then the most powerful left-wing politician in the Labour Party—and had him come down to Margate from London to give a rousing
speech to the party faithful. Cherie Blair sent her husband Tony to pick Benn up from his flat in
Holland Park. Blair thought Benn’s speech was inspiring: ‘I sat enraptured, absolutely captivated. If
only I could speak like that’. The strange thing about the whole episode is that Blair didn’t agree with
anything that Benn had said. He didn’t understand Benn’s way of speaking to be somehow derived
from a tradition and style of radicalism that was its own content. Style, for Blair, was something that
could be added later. T Blair, A Journey (Alfred A Knopf, 2010) 36.
27 In Iris Murdoch’s phrase: ‘Poetry is the creation of linguistic quasi-things; prose is for explanation . . . the influential modern stylist is Hemingway’. Murdoch (1961) 19.
10
Simpson: The sentimental life of international law
possible if one thinks of it as a whole new poetic enterprise. This is why I say
non-facetiously that it would be better for text-book writers (if they are disinclined to read people as having distinctive and highly particular projects)
to leave a blank space under the heading ‘Critical Theory’ or ‘Feminism’.
* * *
To take stock for a moment then, if we can accept for these purposes that
style matters a great deal and not just as decoration, and that our standard
demarcations around style and content may not always be useful, then we can
begin to approach the sentimental as a particular way (or, as I want to suggest,
ways) of thinking, writing or being.
THE SENTIMENTAL LIVES OF INTERNATIONAL LAWYERS
I want to set aside writing style for a moment and turn to a brief description of
some surface manifestations and non-manifestations of the sentimental life of
international lawyers themselves (as a prelude to probing a little deeper).28
I suppose the first thing to be said is that lawyers have not traditionally been
much interested in feelings as an aspect of professional engagement. In our
orthodox, post-enlightenment image of the self there is a separation of the mind
and the body, and the mind is further divided into a calculating instrument of
reason and a chamber of passion (Kant being a key figure here).29 The emotions
(there is a substantial literature on the relationship between emotions and
feelings) are then thought of either as bodily (William James) and chemical
(Damasio) responses to external signals or are confined to a non-cognitive
28 There are some obvious problems with this distinction. I do not deny that international law is what
international lawyers do but I want to draw a distinction between the lives of international lawyers
(thought of as somehow existing apart from ‘international law’) and what they bring life to as a
discipline (e.g. Hersch Lauterpacht’s friends as opposed to the arguments he constructed at the
Nuremberg Trials in 1945). This could be reframed as a difference between the directly biographical
and the indirectly personal, perhaps.
29 John Rawls asks us to drop our affective life as we step into the original position. The moral person is
the reasoning individual deprived of particular interests and stripped of emotional identity. So,
Rawls has sometimes been criticised for assuming that we are all broadly risk-averse (risk, presumably, being a combination of cognitive appraisal and feelings of daring or fear). On the other hand
Rawls, often taken to be the archetypal liberal-rationalist, ends A Theory of Justice on this plaintive
note: ‘Purity of heart, if one could attain it, would be to see clearly and to act with grace and
self-command from this point of view’. J Rawls, A Theory of Justice (Clarendon Press, 1972) 587.
Similarly, as Mark Antaki has pointed out to me, Kant relies on feeling to move us or motivate us in
relation to the moral law.
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aspect of brainwork.30 In either case, the tendency—unmistakably gendered
and famously described by feminist scholars like Robin West—has been to
regard the emotions as inferior or subordinate.31 To be calm, reasoning,
position-less is the liberal ideal. Whatever we experience as legal scholars,
the inclination has been (with some exceptions) to express ourselves in a
highly particular, contingent form. Generally speaking, the ideal is a deracinated, anti-biographical, depersonalised, formally circumscribed, viewfrom-nowhere, prose style. It really is remarkable, given the variousness of
our lives, how stylistically similar the majority of law review essays are.32
There has been work that makes an effort to get beyond these forms
through the anti-heroic narrative or autobiographical legal theory or in standpoint jurisprudence.33 Equally, international law has a specific sentimental
language. Think of these references to ‘the tragic voice of post-war public
law liberalism’ or ‘the sadness for what international law has lost’.34 But I
have been surprised over the years how little emotion there is in the review
pages of journals. Here a relatively genteel form of expression is the norm
despite the enormity of what is at stake.
Indeed, one might expect the review essay to be a place where an angry
exchange or two might flare up. I’m thinking of the bitter disputes found on the
final pages of the New York Review of Books. Or in the (politer) London Review of
Books where Terry Eagleton and Gayatri Spivak’s supporters can slug it out over
a few vituperative weeks.35 There are some famous exceptions, of course,
and I have become a bit of a connoisseur of these (please do email your
own examples). The reader can certainly feel the dismay in Philip Alston’s
30 For a discussion of socio-biological and neurological findings on the role of emotion in cognition see
R Jeffery, ‘Reason, Emotion, and the Problem of World Poverty: Moral Sentiment Theory and
International Ethics’ 3 International Theory (2011) 143, 160-63.
31 R West, ‘Jurisprudence and Gender’ 55(1) University of Chicago Law Review (1988) 1.
32 See JB White, Justice as Translation (University of Chicago Press, 1990) 9-10. Carl Landauer characterises one of Tom Franck’s books as ‘provid[ing] an elegant and at times emotional argument
against the political questions doctrine’ (emphasis added). But it is not made clear what is emotional
about Franck’s argument or why that may or may not be a bad thing. C Landauer, ‘Book Review’ 87
American Journal of International Law (1993) 465, 465.
33 In international law, see D Kennedy, The Rights of Spring (Princeton UP, 2009) (originally ‘Spring
Break’, 63 Texas Law Review (1985) 1377); D Kennedy, ‘Autumn Weekends: An Essay on Law and
Everyday Life’, in A Sarat & T Kearns (eds), Law in Everyday Life (University of Michigan Press,
1995) 191; P Williams, The Alchemy of Race and Rights (Harvard UP, 1991).
34 D Kennedy, ‘A New Stream of International Legal Scholarship’ 7 Wisconsin International Law
Journal (1988) 1, 2; DZ Cass, ‘Navigating the Newstream: Recent Critical Scholarship in
International Law’ 65 Nordic Journal of International Law (1996) 341, 383.
35 T Eagleton, ‘In the Gaudy Supermarket’ 21(10) London Review of Books, 13 May 1999, 3; ‘Letters’
21(13) London Review of Books, 1 July 1999.
12
Simpson: The sentimental life of international law
surprisingly candid demolition of Ian Brownlie’s Documents on International
Law or the intensity of feeling behind Nathaniel Berman’s review of Hurst
Hannum in The American Journal of International Law.36 But these are the
exceptions.
Traditionally, there has not been much, either, in international law, that
resembles the long-running debates about the relationship between the life and
the art in, say, poetry (TS Eliot, Ezra Pound), or in music (Wagner,
Shostakovich). And there was not, until quite recently, a full-blooded biographical tradition in international law. This, though, is changing a little as we
become interested in our predecessors as fully formed human beings as well
as creators of international law. Think of the European Journal series on
European international lawyers, or the interest in the men of 1873, or in the
Manhattan School, or the recent life of Lauterpacht. All of this, at least, points
to a new biographical direction for the field.37
We do know something about the sentimental lives of international lawyers
from the lengthy first footnote in a law review essay or the acknowledgements at
the beginning of a book. Indeed, one could write a whole law review article on
the acknowledgements in monographs, and the way in which a hinterland of
emotional life is partially disclosed, or at least signalled. Quite often it turns out
that there are children (neglected, agitated), a spouse or partner (long suffering,
saintly, occasional grammatical advice). There are friends and colleagues
(usually an improbably large retinue of cool people), and there are places the
author has presented her ideas, sometimes as ‘keynotes’ (for some reason
this list always reminds me of the tennis tour: Shanghai, Montreal, London,
Melbourne, Paris). Maybe there will be a short paragraph or two on the motives
for writing this book: ‘I was inspired by an encounter I had at the UN’ or ‘Years
ago, I was speaking to X on the red-eye from DC’.
To stop for a moment: there are some things that could be said about all
of this. The first is that people read the acknowledgements; they are interested in
the lives behind international law. What sort of person skips the acknowledgements and moves to the ‘actual’ text? Someone very clear sighted, ambitious
and a bit chilly, perhaps? Most of the people I know do read and absorb the
acknowledgments, talk about them, are intrigued by them. They seem to define,
in some important way, the person writing the book. The author—emotionally
dead in other respects—becomes a living presence in these few pages.
36 P Alston, ‘Book Reviews: Brownlie, Ian (ed.), Basic Documents in International Law (2002)’ 13
European Journal of International Law (2002) 1285; N Berman, ‘Autonomy, Sovereignty and
Self-Determination: The Accommodation of Conflicting Rights by Hurst Hannum’ 85 American
Journal of International Law (1991) 730.
37 See, e.g., E Lauterpacht, The Life of Hersch Lauterpacht (Cambridge UP, 2013).
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These acknowledgments do so much work. They position a person in a certain
way—they give her a sentimental life—and that seems important in how
we might read that person’s work, whether her thoughts on inequality might
be compromised by, or re-read in the light of, the hierarchical arrangement
of her household, how we might construct a vision of what that person is trying
to say in her book.
Well, we can all think of other examples. This is just a sketch, and I will
conclude this section simply by noting that the emotions in general are experiencing a revival in moral theory and in scholarship more generally (there is
now, for example, a Centre for the Study of the Emotions established with
Australian Research Council funding).38 Meanwhile, there is a large body
of scholarship testing the relationship between feelings and judgements:
some collapsing the two, others offering hybridised accounts of cognition
and feeling.39
It is an exciting time to be sentimental.
SOME MISGIVINGS
But, at this point we might be far from certain that injecting more ‘sentiment’
into international law is any kind of answer to anything. There are obvious
misgivings one might have with such a proposal. There are so many good
reasons to neither laugh nor cry. Here are a few.
First, the very purpose of law might be to channel the sentimental life away
from its violent symptoms. There is no such thing or should be no such thing as
a sentimental life of international law since powerful sentiment and extreme
passion are what international law was intended to subdue. Here, in 1648, is the
Treaty of Munster:
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
38 Martha Nussbaum is a key figure in the political theory of the emotions: see her Upheavals of
Thought: The Intelligence of Emotions (Cambridge UP, 2001) and Hiding from Humanity: Disgust,
Shame and the Law (Princeton UP, 2004). Pierre Hazan has remarked on the introduction into
international law of ‘terms, often of religious, or psychoanalytic inspiration . . . reconciliation, truth,
punishment, pardon, repentance, catharsis’. P Hazan, Judging Wars. Judging History (Stanford UP,
2010) 10.
39 See Jeffery (2011) 146, comparing Nussbaum (2001) with RS Lazarus, ‘Progress on a cognitivemotivational-relational theory of emotion’, 46(8) American Psychologist (1991) 819 and RS Lazarus,
Emotion and Adaptation (Oxford UP, 1991).
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Simpson: The sentimental life of international law
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.40
This seems to iterate at once an amnesia, a maturing and (after all that had gone
on before) a toning down of international law’s emotional pitch. Religious
fervour and tearful massacre were out, thin forms of cooperation were in.
The temper of Westphalia could then be understood as the very opposite of,
say, George W Bush’s passionate call to eradicate evil. International law is not
really against evil but it is against the idea of evil as a useful concept for understanding and administering modern diplomatic life.
Late one Friday evening, in what will certainly now be my last ever interview with the News of the World, I was asked some questions by a journalist
concerning the trial of President Milošević. After a worrying start—this very
nice young man made a passing reference to ‘Hitler’s trial at Nuremberg’—the
interview settled into a wide-ranging discussion of contemporary war crimes
law. On the Sunday I rushed to the paper shop, hid The News of the World inside
The Observer, and sat down at ‘Café on the Hill’ to read that I had described
Milošević, on page 5, as ‘one of the most evil men on the planet’. Milošević, of
course, was a ‘monster’ to the tabloid press. But as lawyers, we are bound to
reject the idea that accused war criminals are ‘monsters’. Instead he is, for us—
and as I tried to tell The News of the World—a man accused of having
‘participated in a joint criminal enterprise to violate Article 5 of the Statute’
and so on.41 The point, then, is to make things less not more interesting, the
ideal is unsentimental appraisal not sentimental invective.42
This is not just a lawyerly sobriety. Many people find emotions or emoting,
in general, to be somehow suspect. In public life, as tears have become more
acceptable, there has been a fetish of the emotional breakdown. But, whenever
I see a politician crying, I think of Stalin’s tears or chilling images of North
Koreans crying frenetically in a sort of fearful, competitive, pseudo-grief for the
Dear Leader and I worry greatly.
Perfection of a kind, was what he was after,
And the poetry he invented was easy to understand . . .
40 The Articles of the Treaty of Peace, Signed and Sealed at Munster, in Westphalia, the 24th of October,
1648 (W Onley, 1697) 4-5, available at http://eebo.chadwyck.com (last visited 1 December 2014).
41 For similar wording in the first trial at the ICTY see Prosecutor v Dusko Tadic a/k/a ‘Dule’, ICTY Case
No IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, para. 231.
42 See essays on ‘Monsters’ (by Rob Cryer) and ‘Boredom’ (by Kevin Heller) in G Simpson (ed.), The
Passions of International Law (forthcoming).
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When he laughed, respectable senators burst with laughter
And when he cried the little children died in the street.43
I think, on the whole, I would rather be governed by non-crying politicians.44 So, and following Weber, law and administration can be thought of as
anti-tearful ways of governing.45
A second anxiety might go to the irrational nature of sentiment. Studies
indicate that sometimes emotions compromise our decision-making capacity.46
And of course, the belief that feelings are unorganised and chaotic is a common
enough one. Eliot complained that Matthew Arnold, by installing culture in
place of religion, had left ‘religion to be laid to waste by the anarchy of feeling’.47
The third danger might be that an obviously sentimental international law
will not be very good. This connects to the thought that the aesthetic or literary
realm ought to be enjoyed elsewhere, uncontaminated by professionalisation
or, indeed, amateurism. There has been a recent experiment in The European
Journal of International Law called The Last Page. One can see the dangers but I
must say I quite like the idea of international lawyers unleashing their poetic
lives. So, we have James Crawford (on EJILtalk) versifying on the Kadi case at
The Hague Academy of International Law.48 But in my—not very comprehensive—survey of professional taste, I get the sense that there is some unease about
this. I think I approve of this development providing we don’t approach the
work as literary critics. No-one should expect James Crawford to be as good a
43 WH Auden, ‘Epitaph on a Tyrant’ (1939).
44 After I had written this, Kevin Rudd (a fascinatingly pathological figure in Australian politics) gave a
very tearful farewell address in Parliament. He cried openly when he talked about spending time with
his family. Why did I find this suspect? Was it because, like many politicians, Rudd had, for so long,
chosen not to spend time with his family? Or because he had seemed so unsentimental when sending
refugees to Papua New Guinea? Or was it because he had demanded work practices from his own
staff in Canberra that rendered their family lives impossible? All the vices of sentimentality seemed to
be on display here. K Rudd, ‘Kevin Rudd’s farewell address to Parliament—in full’, The Guardian, 13
November 2013, available at http://www.theguardian.com/world/2013/nov/13/kevin-rudds-farewell-address-to-parliament-in-full (last visited 1 December 2014).
45 Weber, discussing puritan asceticism, speaks of the way in which ‘it is to the methodical control over
the whole man that both (Calvinism and Catholic monasticism) owe their tremendous world-conquering power’. This, he said, is ‘found in the best kinds of English and Anglo-American
“gentlemen” today’. M Weber, The Protestant Ethic and the ‘Spirit’ of Capitalism (Penguin
Classics, 2002) [1905] 81.
46 See Jeffrey (2011).
47 TS Eliot, ‘Notes Towards the Definition of Culture’, in Selected Essays (Faber & Faber, 1950,) 386-87.
See, too, L McDiarmid, Saving Civilisation: Yeats, Eliot and Auden Between the Wars (Cambridge UP,
1984) 124-26.
48 J Crawford, ‘Mr Kadi and Article 103’, EJILtalk, 29 July 2013, available at http://www.ejiltalk.org/mrkadi-and-article-103-by-james-crawford-a-poem/ (last visited 1 December 2014).
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Simpson: The sentimental life of international law
poet as he is an international lawyer. That would be like asking Auden to settle
a bilateral investment dispute.49
THE SENTIMENTAL LIFE OF INTERNATIONAL LAW:
MELODRAMA
I want, now, though, to come to an important distinction at the heart of my
talk. I saw Jonathan Franzen, a year or so ago, give a keynote address at the
Melbourne Writers’ Festival. Franzen held up Philip Roth’s Sabbath’s Theatre
as an example of courageous literary work, a lesson to be learned by all the
‘sentimental’ American novelists: a reproach to what he calls ‘the sentimentality
of certain young American writers . . . who seem to believe . . . that literature is
about being nice’.50 (Certainly, there is nothing ‘nice’ about Mickey Sabbath.)
In this speech, Franzen goes on to list a bunch of things he doesn’t like about
the modern novel: ‘weak narrative . . . misogyny . . . sterile game playing’ . . . and
‘sentimentality’.51
It’s a telling catalogue of defects. No-one wants to come on as a sterile,
game-playing misogynist. But ‘sentimental’ is a less harmful epithet, surely.52
During the question and answer period, someone in the audience asked Franzen
what was wrong with sentimentality; after all, this questioner asked, wasn’t
David Foster Wallace in favour of sentimentality?53
This exchange suggested for me the existence of at least two forms of
sentimentalism. And I want to use the remainder of this lecture to explore
these forms and what they might have to say about the work we do.
49 As Barry Hill pointed out to me, Auden might have been quite good at settling arbitration disputes. I
remembered, too, that Auden had written a poem about arbitration. In ‘Partition’, an imperial
bureaucrat is tasked with dividing ‘two peoples fanatically at odds’ along with ‘four judges, two
Moslem and two Hindu, To Consult with, but the final decision must rest with you’. WH Auden,
‘Partition’ (1966). Ezra Pound would be a better choice of poet here (intemperate, impatient,
experimental).
50 J Franzen, Farther Away (Harper Collins, 2012) 125.
51 Ibid.
52 JM Coetzee has something similar occur in Elizabeth Costello. Costello is invited to give a conference
presentation on evil. She suspects this is because of the notoriety of some remarks she had made at a
college in the US comparing abattoirs and the production of meat to the concentration camps. She
finds herself defended by people with whom she has no sympathy: ‘anti-Semites, animal-right
sentimentalists’. JM Coetzee, Elizabeth Costello (Vintage, 2004) 157.
53 People can and do disagree on this. Here is Zadie Smith: ‘The popular view of Wallace was of a coolly
cerebral writer who feared fiction’s emotional connection. But that’s not what he was afraid of. His
stories have it the other way round: they are terrified of the possibility of no emotional connection’. Z
Smith, Changing My Mind (Penguin, 2009) 272.
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This relationship between two forms of the sentimental was at its most
visible in the middle of the 18th century when we have Smith’s Theory of
the Moral Sentiments sitting alongside—and working against a spate of, nowdisparaged, sentimental novels—culminating in the work of yet another
Scotsman, Sir Walter Scott.54 The enlightenment, of course, happened in different places at different times. But we know in Scotland an enlightenment
project was underway where the ‘passions’ (as Hume called them) or ‘moral
sentiments’ (Smith) entered the modern philosophical and political lexicon,
and were contrasted with the cruder sentiments expressed in the sentimental
novel.55
There is something suggestive for international lawyering in this
relationship.
To put it bluntly, on one side we need a language of sentiment to motivate
us and render our lives meaningful, but the danger on the other side lies in the
possibility of mawkishness. Coming to the point, I think this danger can be
partly avoided by adopting a sentimental form of work that repeatedly combines and recombines involvement and distance, and applies sensitivity to
suffering allied to a suspicion of over-advertised sensitivity to suffering.56
So let me begin with ‘the sentimental’ coded as moral, literary and juridical failure. I will touch on four practices associated with sentimental failure.
I want to call these: sentimental excess, moral simplicity, solipsism and depoliticisation.
Sentimental excess
I think what Franzen is referring to and what most of us mean when we use the
word ‘sentimental’ is an excess of emotion, or a lack of alignment or proportion
54 The Scots have a dual reputation for being both closed-for-business emotionally, and excessively
sentimental (compare Smollett’s awful travelogue with Boswell’s account of his journey with
Johnson to the Hebrides).
55 This project understood the sentiments as an important engine of social, moral, political and
financial life. Without them, the market collapsed into itself (Smith) and moral life was impossible
(Hume). I was introduced to these ideas in a course on 18th-century Scottish legal thought taught by
Ken Mackinnon at Aberdeen University in 1986. This was a lengthy 18th century, stretching from
Stair to Lorimer.
56 Bob Dylan once said ‘involvement is death’, and a certain sort of immersion in a particular scene
might indeed bring in its wake artistic or critical death. Think of the singer who makes the mistake of
becoming ‘a spokesman for his generation’, or an academic who becomes a legal adviser to government. See, too, L Sterne, A Sentimental Journey through France and Italy by Mr Yorick (Penguin,
2005) [1768].
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between event and expression.57 IA Richards, the great literary theorist of the
inter-war period, devotes a chapter of Practical Criticism: A Study of Literary
Judgement to ‘Sentimentality and Inhibition’. For him, sentimentality really is
akin to a disease of the mind. This tendency to emote too readily or willingly is
associated, he claims, with brass bands, nightingales and influenza.58 Even
Richards himself is prone to it: ‘I reluctantly recall the last time I had influenza,
a very stupid novel filled my eyes with tears again and again until I could not see
the pages’.59 The main characters in the sentimental novels of the 18th century
are, unlike Richards, frequently moved to tears.60
We can see these excesses—related here to a sense of unearned emotion—
in the syrupy evocations of distress or voluptuous descriptions of massacre that
are old standbys on the lecturing circuit, and, sometimes, in written scholarship. It is present, too, in preambular international law. So, we have ‘outrages to
the conscience of mankind’ or the Rome Statute’s rather unlikely ‘delicate
mosaic of peoples’. The literary flourish is rarely an aesthetic success.61
At a recent conference on the Passions of International Law, my colleague,
Kevin Heller, in a response to all this, called for a boring jurisprudence (situated, perhaps, in a tradition of austere modernism): a return to law as jurisprudence.62 So, just as we watch two tramps doing and saying nothing much;
we observe a trial grind on interminably through its interlocutory phases.
Saying something definitive seems suspect in each instance: bourgeois theatre
in one case, show trial in the other.63
57 Stephen Ahern calls this the ‘aesthetic of emotion’. S Ahern, Affected Sensibilities: Romantic Excess
and the Genealogy of the Novel 1680-1810 (AMS Press, 2007). For IA Richards, it is partly a lack of
proportion (too much gushing, ‘too great for the occasion’, partly a lack of refinement (the expression of sentiment lacking in taste), partly an inappositeness (sentimentality about war (bloody and
gruesome) or about schooldays (nasty and brutish)) and partly an expression of emotion for its own
sake (see contemporary Hollywood). IA Richards, Practical Criticism: A Study of Literary Judgement
(Routledge & Kegan, 1929) 258.
58 Richards (1929) 257.
59 But the aversion to sentimentality can be politically reactionary, too. Think of John Howard’s
antipathy to the ‘maudlin’ view of Australian history that calls attention to the dispossession and
murder of Aborigines in Australia. See Gaita (2011) 133.
60 This is something akin to intoxication or fear: a state of being or mind that fatally compromises the
capacity to see or present things as they are; see Gaita (2011).
61 The ‘untold sorrows’ of the UN Charter is better (even if drafted by a supporter of racial segregation
in South Africa).
62 See Heller (forthcoming).
63 Samuel Beckett insisted that theatre be reduced to its barest of bare life or hacked to the bone (as
Terry Eagleton once put it). Beckett mourns his father precisely in this anti-literary, unsentimental,
manner. In his letter to Thomas McGreevy in Paris, 1933, he says of his father, ‘I can’t write about
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But surely we can see why we took the sort of sentimental turn deplored by
Heller and others. Because, in the world of international law, we have the
spectre of the very opposite problems of dryness or technocracy: a ritualisation
of evil, the conversion of the unprecedented into precedent, the anti-poetics
of legal language, the reductiveness of lawful thought, the thinness of emotional
life contained in judicial pronouncements or scholarly work.
So, international law has worked against this problem by moving in the
direction of the sentimental. Perpetrators are brought to life in all their villainy,
no longer able to shelter behind the state. Indeed, it was this very sheltering
(and not the crimes themselves) that the peacemakers at Versailles believed
‘shocked the civilised conscience of mankind’.
And now we have more explicit projects to make international law responsive to the tears of victims. One of the standard complaints made about war
crimes trials is that victims of mass atrocity are under-represented (in both
senses of that word). The result has been the introduction of compensation
schemes, out-reach projects and civil party involvement. These are each designed to give international law an emotional life, to answer the criticism that
lawyers are somehow soulless, and to enhance international law’s expressive
or didactic or symbolic or sentimental life.
The problem with this turn to victims, as Richards has argued about the
impoverished and destitute in the sentimental novels of the 18th century, is that
they are often given a severely attenuated emotional life. They are only victims
(not, say, class warriors or perpetrator-victims; Hannah Arendt encountered
a great deal of trouble when she tried to develop this idea). Here, if you like,
the problem is not the case of too much feeling but too little, or too narrow a
range of, feeling.64 Or, and to put this another way, the problem for the activist
from the centre is too much feeling, the problem in representations of the
victim at the periphery is too little. Sentimentality is the luxury of those in a
position of safety.
In the same way that a sentimental novel will treat the destitute as a
blank screen on which to project the feelings of compassion experienced by
an aristocratic class, so, too, in international law, the victims of mass crime
often seem to have a curiously featureless internal life compared to the selfreflective agonies of the humanitarian. This is mirrored in the field’s conceptual
languages: crimes against humanity are precisely those crimes that disturb
him, I can only walk the fields and climb the ditches after him’. MD Fehsenfeld & LM Overbeck
(eds), The Letters of Samuel Beckett, 1929-1940 (Cambridge UP, 2009) 164.
64 Mark Drumbl is good on this. See MA Drumbl, Reimagining Child Soldiers in International Law and
Policy (Oxford UP, 2012).
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Simpson: The sentimental life of international law
humanity’s self-conception. So, who is the real victim here? Humanity? Or the
person who happens to be tortured? Could it be that ‘humanity’ is enriched and
privileged at the expense of thinking of individual humans as individually
harmed?
Moral simplicity
Another way in which international law has worked against the problem of
dryness and boredom, and embraced sentimentalism, is by moving in the direction of character, plot and moral tale. As the International Military Tribunal
at Nuremberg put it, reversing the trajectory of modernist literature at the time,
‘crimes are committed not by abstract entities but by men’. This international
law is plot-driven, character-full, and has an 18th-century piety at its core. In a
lecture given here at the LSE over a decade ago, Richard Goldstone even went as
far as to argue that international law could barely be said to exist in the absence
of international tribunals and trials.65 Ahistorical as these sorts of comments
might be, we know—when we hear them—that we have moved from the abstractions of structure to the punishment of flesh and blood monstrosity.66
Here, though, the sentimental risks becoming a form of moral simplicity
(melodrama is its aesthetic form) in which the tendency is to divide the world
rigidly into perpetrators and victims, or tyrants and vulnerable and abject
populaces.67 The way in which war is now thought of as either criminal or
humanitarian seems also to be configured around a narrative of moral simplicity.68 This structure of understanding, which begins with Lloyd-George and
Clemenceau during the Great War, and is found throughout the modern project of international criminal law, sees war’s origins as a narrative in which
individuals with some sort of criminal intent—and through force of will or
malevolent charisma—capture powerful states and transform them. This leaves
these leaders open to prosecution for the ‘crime’ of aggression. The whole idea
of an international law (responsibility to protect, human rights interventions)
65 R Goldstone, ‘What is the future for an International Rule of Law?’, Lecture at the London School of
Economics, London, 2001.
66 Thus, we have Von Ribbentrop ‘struggling in the air for twenty minutes’ as he is hanged in
Nuremberg. See R West, ‘Greenhouse with Cyclamens I’ [1946], in A Train of Powder (Virago
Press, 1984) 77. In an essay on state responsibility, Philip Allott wrote, in one of my favourite
international law quotes, ‘the punishment for sin is death not responsibility for sin’. P Allott,
‘State Responsibility and the Unmaking of International Law’ 29 Harvard International Law
Journal (1988) 1.
67 Carl Schmitt first identified this tendency in The Nomos of the Earth (Telos, 2006) 320-21.
68 Elaborated in my ‘Linear Law’, in C Schwöbel (ed.), Critical Approaches to International Criminal
Law (Routledge, 2014) 159.
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of humanitarianism is built around such distinctions.69 The idea of the
humanitarian war insists on sharp moral distinctions between interveners
and those subject to intervention. This is what Perry Anderson, discussing
the historical novel, called ‘costume drama’ and features a melodramatic
clash between good and evil played out in over-stylised terms: it is international
law in its formulaic or operatic mode.70
And so, the international law of force is appealing more and more to the
same sensibility that has book group participants complain about the lack of
sympathetic characters in an experimental novel (as in: ‘I just couldn’t relate
to the female protagonist’ or ‘I didn’t like the husband’).71 Now, we have
humanitarians we can relate to.
Sentimental solipsism: advertisements for myself
There are also more sinister implications of sentimentality, in particular the
danger of a sentimental solipsism. The sentimental novel of the 18th century
typically featured a fellow of fine feeling and sensibility experiencing exquisite
distress, and documenting it, or having it documented, in, often, florid prose.
The effect is self-congratulatory rather than sympathetic, but the trick seemed
to have worked well at the time. These novels were commercially successful, and
established an image of aristocratic benevolence. The encounter with trauma or
with tragedy was always about the observer, the ‘man of feeling’ (to quote the
title of one of these novels) rather than the victim or the situation (far less,
the social or economic structures that might have produced the situation and
in which the sentimental protagonist might be implicated).
69 That is why recent rhetorical moves reversing the gaze of humanitarianism are so provocative. I am
thinking here of the Iranian Government’s condemnation of police brutality in the UK three summers ago during the riots in London, or recent calls for the UN to intervene in the US to end gun
violence (more lethal in the long view than the Syrian civil war).
70 P Anderson, ‘From Progress to Catastrophe’ 33(15) London Review of Books, 28 July 2011, 24. I am
being unfair to opera here. Nixon in China or Death of Klinghoffer or Steve Reich’s Three Tales or
Peter Grimes offer complicated counter-histories—anti-operatic operas where goodness and evil
recede into the background. See, e.g., J Adams, Nixon in China, libretto Alice Goodman (1987).
In Chou’s final aria, ‘I am old and I cannot sleep’, he reflects on his life’s work: ‘How much of what
we did was good? Everything seemed to move beyond our remedy’. This is the very opposite of Cold
War thinking, of course, but its gently Shakespearean final sentence offers a pretty decent characterisation of the work of, say, human rights lawyers or international criminal law practitioners.
71 For the most austere of modernists of course plot, character, emotion, and content were all suspect.
Flaubert anticipates this by saying that the greatest goal in art is to ‘raise neither laughter nor tears’
and Brecht wanted to write ‘non-empathetic’ theatre. In this regard, modernist high art was a
repudiation of romantic sentiment and naturalistic description. Hence, there is the post-romantic
anxiety about displays of emotions (the concern that these might be sentimental or unearned:
‘Prufrock’ not daring to disturb the universe, for example).
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This was all parodied over two centuries ago. In A Sentimental Journey,
Laurence Sterne’s protagonist, Yorick, travels in order to experience grief and
sympathy, and advertise his own self-improvement. The idea of foreign experience itself is satirised in ways that might resonate with some international
lawyers, their curriculum vitae full of cosmopolitan identifiers.72 Yorick is the
epitome of the look-at-me philanthropist or humanitarian.73 He goes from
place to place almost doing good deeds, or, not doing good deeds, and wondering how this reflects on him, or doing good deeds in exchange for some sort
of sensual reward, or doing good deeds and enjoying the increased feeling of
self-worth.
Sometimes, international law presents as a project of sentimental solipsism: advertising its virtues, obscuring its vices.74 Considering what it does to
reinforce the existing coinages of privilege and distributions of power, this is a
remarkable trick and it has been a success as far as the public mind is concerned
(though there have been costs, too). I have recently been attending, in
Melbourne, a series of lunch-time social gatherings with businessmen and the
very occasional businesswoman. When it comes to the formalities and I am
introduced as an international lawyer, I can see the typical arc of the thought
processes: ‘impressive. . . decent . . . marginal’. What follows might be a discussion of the taxation system or the trade in derivatives or the price of oil. At some
point there will be a brief discussion about ‘Syria’ or ‘the boat people’ (in more
hard-hearted circles these are now conflated with ‘people smugglers’). There
will be no sense that international law has anything at all to do with the first
series of topics or that it is in any way responsible for creating the conditions for
the second. My efforts to say something about this have been met with a blank
and slightly pitying lack of comprehension: searing radical critique as social
faux pas.
International lawyers, particularly humanitarians, will have to be very
careful if they are to avoid being remembered as the aristocratic men of sensibility from the 18th century are remembered. Indeed, this apparent combination of aristocratic sensibility, high morals and effeteness is captured in
popular culture when, in one of the Bridget Jones films we discover that the
72 At one point in Tristram Shandy, too, Tristram deplores travel writers who ‘can’t go quietly through
a town and let it alone’. L Sterne, The Life and Opinions of Tristram Shandy (Penguin, 1981)
[1759-1767].
73 Sterne (2005).
74 David Kennedy writes on this. See, especially, ‘Law and the Political Economy of the World’ 26
Leiden Journal of International Law (2013) 7. I take up the theme of ‘virtue’ in G Simpson,
‘International Law in Diplomatic History’, in J Crawford & M Koskenniemi (eds), The
Cambridge Companion to International Law (Cambridge UP, 2012).
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nice but insipid and drippy character played by Colin Firth is a ‘human rights
lawyer’.
Depoliticising sentimentality
The sentimental novel of the 18th century was not just a description of suffering
(either the suffering of the victim or man of feeling) but a normative statement
about the virtuousness of feeling, and responding to, that suffering, as well as a
promotion of ‘charitable impulses’.75 The combination of didactic moralising
and the display of intense feeling signals—perhaps even constitutes—a particular class sensibility.
In Affected Sensibilities (his study of this), Stephen Ahern rehearses three
forms of the sentimental novel: the gothic, the amatory and the ethical.76
In discussing the transition from the second to the third, he remarks on the
way in which the language of love was ‘first used to designate the relations
between two individuals, but soon the significance is widened to include the
affairs of humanity in general’.77 In a similar move, international human rights
law (human rights in general) has sometimes been understood as having displaced or supplanted other more potent or compelling languages of sympathy
or fellow-feeling or affection. I have certainly written and spoken about this.
But Ahern’s trio of sentimental types raises the possibility that human
rights law is part of a generalised extension of love into the ethical domain.
Romantic love, of course, can be understood as a very particular experience of
transcendence (one’s surroundings or circumstances cease to matter much),
disconnectedness (the love object becomes the exclusive focus of one’s energies)
and stupefaction (a loss of good sense, a cut in IQ). Other people’s love letters
(i.e. those not addressed to oneself) are sometimes (not always, not even often
perhaps) embarrassing for this very reason: critical faculties are suspended
somehow. And love, in some of its most potent cultural representations, has
always cut across class or family boundaries: it is an act of taking out of context
(and sometimes, in tragic love especially, being brought back into context
(Romeo and Juliet, Tristan and Isolde)).78 Lovers want a better world but they
are somehow detached from that world.
75 D Birch (ed.), The Oxford Companion to English Literature, 7th ed. (Oxford UP, 2009) 903.
76 Ahern (2007). These included The Vicar of Wakefield, and the great epistolary novels: Pamela and
Clarissa as well as Henry Mackenzie’s The Man of Feeling.
77 See, too, F Boesner, ‘The Changing Meaning of “Sensibilité”, 1654 till 1704’ 15 Studies in 18th
Century Culture (1986) 86.
78 See A Leggatt, Shakespeare’s Tragedies: Violation and Identity (Cambridge UP, 2005) 37-39.
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Simpson: The sentimental life of international law
In the sentimental novel, then, we have an amatory, operatic language
existing in the midst of astonishing deprivation and inequality, and apparently
inattentive to the causes of such deprivation. This might remind us of human
rights law with its high-flowing rhetoric about the rights of man but indifference to the banking crisis.
What we end up with in some forms of sentimentalism is the idealisation
of classless humanity. As Janet Todd argues: ‘misery is alleviated by sensibility
and sympathy, not by political action’.79 Even more tellingly, Ahern suggests
that the alienation of the self from the world and the further deterioration in
material conditions require more tales of moral improvement: sentimentalism
breeds in conditions of squalor.80 This produces the combination of endless
torment and sentimental encounter.81
I will argue in a forthcoming book that international law (especially,
human rights law and international criminal law) has a tendency to do the
same sort of thing. The Genocide Convention literalises this tendency with its
protection of national, ethnic, racial and religious groups and its occlusion of
class struggle, but the decontextualisation of the sentimental encounter is a
significant feature of a great deal of international law work.82 Indeed, the
more contextualised the work human rights lawyers do the lower their status,
e.g. those who work in trade unions on ‘labour rights’.
This depoliticised sentimentality is present, too, in the way people speak
about the ‘individual’ in international law. There was a spate of essays and work,
not that long ago, which took a very sentimental view of the individual. This
was a character who had been neglected or elided in some way by the ‘statism’ of
international law or the international order. It seemed important to retrieve or
re-position the individual as a bearer of rights or duties at the international
level. And yet, in this work, there did not seem to be much awareness of the role
of, say, individualism in producing a certain form of late-capitalism to be set
against the collective politics or endeavours of particular classes, or the relationship between anti-statism in international law and a corrosive hostility to
the whole public realm in the dominant economic politics of the era.
79 J Todd, Sensibility: An Introduction (Methuen, 1986). Ahern also invokes the Bakhtinian idea of
carnival as a way of playing out but at the same time containing and domesticating rebellious urge
and dissent. See MM Bakhtin, The Dialogic Imagination (University of Texas Press, 1981) 259-422.
See, too, W Motooka, The Age of Reasons (Routledge, 1998).
80 Ahern (2007) 21.
81 This era (of sentimentalism?) did produce its achievements: the Reform Bill, the anti-slavery movement and so on. It also produced a field of satire and irony (see below).
82 See H Charlesworth, ‘A Discipline of Crisis’ 65(3) Modern Law Review (2002) 377.
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This too, resembles The Man of Feeling, where the indigent and impoverished are to be cared for, mourned and wept over as individuals but feared and
despised as classes of people.
THE SENTIMENTAL LIFE OF INTERNATIONAL LAW:
IRONIC TEARS, DRYNESS
Let me come to some sort of conclusion by saying that what we seem to have is
a concern about dryness (partly counteracted—but maybe also, at times, compounded—by the new international law of humanity and human beings) and
an anxiety about melodrama (a nagging concern that all this focus on victims
and individuals and narrative arc is sentimental and depoliticising).
So, I have been left in my work trying to come to terms with the spectre of
technocracy (law, rationality) and the lure of sentimental indulgence (tears,
melodrama). In teaching a class on, say, the law of war crimes, I like to embrace
austerity. But it can seem odd to teach war crimes law without mentioning any
actual crimes; my account of joint criminal enterprise in Tadic or command
responsibility in Oric must appear a bit soulless. Sometimes I wonder if I am
re-enacting the whole Nuremberg Tribunal allergy to discussing the Holocaust
itself by focusing instead on the technical aspects of the war or organisational
criminality: anything but the actuality of the offence.
On the other hand, as I have said, ‘humanising’ our work seems dubious,
too. I worry about overcompensating for dryness by dwelling on the unspeakable.83 Descriptions of massacres very often seem cheaply sentimental, notfully-earned. So, every course I teach in this area is a rehearsal of my own
angst about these things. But then I worry that war crimes law shouldn’t
really be about my angst.84
83 Just after writing this lecture, I picked up a copy of the New York Review of Books and read an essay by
Mark Lilla on the recent film about Hannah Arendt made by Margarethe von Trotta. At one point,
Lilla states: ‘it cannot be emphasised enough that the Holocaust is not an acceptable occasion for
sentimental journeys’. See M Lilla, ‘Arendt and Eichmann: The New Truth’ 60 New York Review of
Books, 21 November-4 December 2013, 35, 36.
84 In Coetzee’s Elizabeth Costello, Costello, an Australian writer of some renown and possibly a Coetzee
avatar, worries away about this form of sentimentality as prurience or voyeurism. She reads a book
by a ‘Paul West’ (he might be a stand-in for the Martin Amis of Koba the Dread) about the horrors of
the Von Stauffenberg Trial and wonders whether there should be limits on what is said and described
in writing about torture and depravity. This becomes the basis for her keynote address at a conference in Amsterdam. West, inevitably, is in the audience. I have no idea what Coetzee’s own views on
this might be (he, too, describes or brings into the world, the very horrors Costello recoils from) but
Costello’s are a compelling defence of the limitable (the idea of an obscene or ‘off- scene’; things that
should not be described or stories that poison the soul). Coetzee (2004) 156-82.
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Simpson: The sentimental life of international law
What is to be done? I have tried to show in this lecture that international
law, and its lawyers, possesses a sentimental life (but that this is not a commonly
discussed aspect of our work) and that this sentimental life carries with it
certain dangers (I discussed four of these: excess, simplicity, solipsism and
depoliticisation). Adopting, or, perhaps better, thinking and speaking through,
a specific genre of sentimental international law—with its desire to achieve
affect and sentimentalise the encounter with otherness—risks trumping the
experience of sympathy, the potency of political action and considerations of
taste. The debate around the 18th-century novel might be a way of clarifying
what is at stake in avoiding these dangers.
By avoiding them, it might be possible to imagine a non-fraudulent and
less obviously solipsistic affective life for international law.85 To put this differently: I suppose a sort of hard-boiled, unillusioned sentimental life is what we
might be after, sentiment without sentimentality. A sentimental life that takes
the emotional pulse of the work we do but allies it to an economy of irony that
is at the same time detached but involved.86 Let me end with one literary
example and one juristic (or counter-juristic) example.
I have been reading a little about Laurence Sterne recently. Here was
someone whose life and books can be understood through the relationship
between hard-boiled and soft sentiment. It is suggested, for example, that he
switched tack from satire to sentiment in accordance with public taste (in
particular a growing taste for sentimentality). In Tristram Shandy, a novel
I have always had a hard time with, there is a description of the death of one
of the main characters, Yorick (later to be found travelling through France on
his Sentimental Journey). The death-bed scene is conveyed in the style of the
sentimental novel but one can feel the loss of faith in romantic sentiment
behind the words Eugenias, Yorick’s friend, speaks. ‘He was within a few
hours of giving his enemies the slip for ever—“I hope not” answered
Eugenias, with tears trickling down his cheeks, and with the tenderest tone
ever man spoke’.87
The scene continues in this vein but the sentimentality is offset by two
epilogues: one, a broad comic gesture backwards (Yorick is ‘laid upon his grave
with no more than these three words of inscription serving as elegy and epitaph:
Alas, poor Yorick’); the other, a very postmodern black page (suggesting
85 I am not so interested here in whether emotions are the slaves of reason or whether cognitive
judgements must be also emotional judgements. See, for an overview, Jeffery (2011).
86 I explore this idea in greater detail in G Simpson, ‘Satires of Circumstance: Some Notes on Irony and
War Crimes Trials’, in C Stahn & L van den Herik (eds), Future Perspectives on International
Criminal Justice (TMC Asser Press, 2009) 11.
87 Sterne (1981) 60.
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Yorick’s eternal rest). In the end, we are permitted to feel for Yorick and
Eugenias while at the same time ‘feeling’ the dangers of over-feeling.88
Rebecca West works in this seam of cool sentiment when she writes about
the Nuremberg Trial.
Often people said, ‘You must have seen some very interesting sights
when you went to the Nuremberg Trial’. Yes, indeed. There had been a
man with one leg and a child of twelve, growing enormous cyclamens
in a greenhouse.89
These cyclamens (like nightingales, brass bands and influenza) immediately promise sentimentality and the purpose again is to feel, but not too
much.90 The cyclamens are a rebuke to those who would over-sentimentalise
the victims of war. They are also a rejoinder to the idea of politics as a series
of transformative events; instead, the cyclamens represent a decentring of the
trial, of the grand political moment. ‘Nuremberg’ refers to the trial, of course,
but also, now, for me at least, the greenhouse. So, alongside a wry bathos
(Goering, Von-Ribbentrop, the cyclamens), there is in this reference a reversion
to the everyday: a familiar that war had rendered unfamiliar.
The bathos in this makes us laugh or, as the song goes, ‘smile in the face of
mankind’. In the citadel, after all, mankind was busy inventing itself or setting
down some juridical markers (‘crimes against humanity’, the ‘conscience of
mankind’ and so on). Outside, though, there is the everyday business—a
kind of declension—of growing flowers and getting around on one leg.
Of course, this is sentimental but not in the way that lurid descriptions
of the effects of bombing, or monumental histories of the Trial might be.91
In these latter cases, a demand is being made that we weep over the victims, that
we abhor or condemn, that our legal rituals determine and define and provide
a final pronouncement on the nature of evil or the course of history. In West’s
88 On a larger cultural canvas, the most beautiful working through of this is found in Paul Fussell, The
Great War and Modern Memory (Oxford UP, 1977). Fussell, who died in 2012, explored the ways in
which an ironic tradition emerges in the trenches of France to displace an Edwardian panoply of
virtues and attitudes (tradition and duty being two obvious examples). It does so because of the
comically gaping chasm between the patriotic insistence on the imminent triumph or vindication of
civilisation, and the outright ‘abridgement of hope’ present in the trenches. The result was a language of irony that was full of sentiment but tough-minded, resilient, critical and fully-earned.
89 West (1984) 127.
90 One story is that life continues outside the court-room. The hidden history is that perhaps what
matters is how the flowers grow after the trial is over. This, indeed, has been a major question asked
of international war crimes trials. Are they integrated properly into the existing or future local
criminal justice machinery? What effects are they intended to produce or do they produce on the
rebuilt state or the transitional democracy or the traumatised population?
91 I borrow the idea of monumental history from Nietzsche.
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Simpson: The sentimental life of international law
case, it’s not quite clear how we should respond; we are being asked to think
about something else altogether. The child is a victim of the war but she is
neither passive nor just a victim (in the way we demand, in criminal trials, that
victims be just victims). The passage engenders a sense of responsibility for her
as a cyclamen grower. We want her horticulture to succeed. She wants
our engaged sentiments but not our pitying tears. Here she is: growing her
cyclamens only a few months after Bomber Command’s final gratuitous assault
on the civilian population of Nuremberg on the night of 16-17 March 1945
when 277 Lancasters pulverised, for the second time, the remnants of the city’s
historic centre.92
Like West’s, the best writing—the best theorising—resists the injunction
to come to point, to render the world transparent, to clarify the thesis, to
achieve relevance, to simplify.93 These are the standard vices of the sentimentality of excess and simplicity, of operatic international law. This lecture has
been a plea for something else: a different register combined with a wariness of
that different register, a poetic international law of the ‘tingle’,94 an irony of the
mind. This might involve an attentiveness to the unseen and unheard or, seemingly, insubstantial or a commitment to an international law of style and love
and smallness, and an attentiveness to the everyday and to the informalities of
power. A willingness to do what poets do: namely to notice the micro-political
humiliations that might entirely undercut the grand humanitarian scheme.
This capacity to wonder at trifles—no matter the imminent peril—
these asides of the spirit, these footnotes in the volume of life are the
highest forms of consciousness, and it is in this childishly speculative
state of mind, so different from commonsense and its logic, that we
know the world to be good.95
When it comes to the sentiments, I suspect the prosecution mutters
‘woolly, self-indulgence, incontinent’; the defence cries ‘sincerity, openness,
creativity’. Perhaps, Martin Wight, who taught here at the LSE, was right all
along and that our feelings about international affairs (and your receptiveness
to this lecture) will depend partly on temperamental rather than conceptual or
intellectual considerations.96 Here I have offered some markers and warnings
92 AC Grayling, Among the Dead Cities (Bloomsbury, 2006) 12-13.
93 For similar thoughts see K Soper, Troubled Pleasures (Verso, 1990).
94 Nabokov’s word from V Nabokov, Lectures on Literature (Harcourt Brace Jovanovich, 1980).
95 Ibid 374.
96 M Wight, ‘An Anatomy of International Thought’ 13 Review of International Studies (1987) 221,
221-22.
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and some promises. This is not a science of the sentiments: it’s art all the way
down.
Maybe all I have done is to argue for an international law that keeps an eye
on its own emotional life and one that adopts a form of life that resists tears
but stays close to them.
So, in the end, when Patroclus is dead and on the morning when Achilles is
about to die, Achilles tells Odysseus that Patroclus was ‘the only living thing
that called love out of me. At night I used to dream of how when he came home
to Greece, he’d tell them of my death . . . and show my son . . . my long green
meadows stretching through the light’. Achilles falls asleep beside his men,
and ‘Odysseus goes off, as close to tears as he will ever be’.97
97
Logue (1988) 78.