The sentimental life of international law

Abstract

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 Hume ¹

‘… the emergence of the human rights culture seems to owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories …’

      – Richard Rorty ²

‘Tears and laughter are, aesthetically, frauds’

      – José Ortega y Gasset ³

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 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 , 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 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, 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 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 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 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 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, view-from-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 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. 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 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 …

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 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.

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, now-disparaged, 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 de-politicisation .

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 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

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 self-reflective agonies of the humanitarian. This is mirrored in the field’s conceptual languages: crimes against humanity are precisely those crimes that disturb 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) 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).

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 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.

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.

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, not-fully-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

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 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 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 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

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.

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).

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.

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.

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.

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 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.

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.

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 .

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).

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 cognitive-motivational-relational theory of emotion’, 46(8) American Psychologist (1991) 819 and RS Lazarus, Emotion and Adaptation (Oxford UP, 1991).

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).

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/mr-kadi-and-article-103-by-james-crawford-a-poem/ (last visited 1 December 2014).

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.

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].

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 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).

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.

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).

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).

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.

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.

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.

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.

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.

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.

97 Logue (1988) 78.