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Rules, Games, and the Axiological Foundations of
(International) Criminal Law
Leo Zaibert
When compared to domestic legal systems,
international law, in general, has often been perceived
as somewhat of a second-class citizen. H. L. A. Hart’s
skepticism as to the credentials of international law is
as good an example as any. Famously, Hart believed that
international law “lacks the secondary rules of change
and adjudication which provide for legislature and
courts” that are found in domestic law.1 And many a Professor of Philosophy, Union College. Email:
1 H. L. A. Hart The Concept of Law, (2nd ed.) Oxford: Oxford
University Press (1994). Jeremy Waldron “International Law:
A ‘Relatively Small and Unimportant’ Part of Jurisprudence?”
in Reading HLA Hart’s The Concept of Law (Luis Duarte de
Almeida, James Edwards, and Andrea Dolcetti, eds.) Oxford:
Hart (2013): 209-226, at 214.
jurisprude working in Hart’s wake has uncritically
perpetuated Hart’s dismissal of international law.
Recently, Jeremy Waldron has criticized Hart’s
views, suggesting that they present “a frustrating
combination of insight and obtuseness”.2 Waldron is
particularly critical of an inference that allows Hart to
go from the alleged absence of secondary rules in
international law just mentioned to the conclusion that
international law is somewhat limited, somehow resembling
primitive, proto-legal arrangements:
The inference goes through if Hart is
interpreted as saying that international law
lacks exactly the kind of secondary rules of
change and adjudication that are required to set
up institutions exactly analogous to municipal 2 Jeremy Waldron “International Law: A ‘Relatively Small and
Unimportant’ Part of Jurisprudence?” in Reading HLA Hart’s
The Concept of Law (Luis Duarte de Almeida, James Edwards,
and Andrea Dolcetti, eds.) Oxford: Hart (2013): 209-226, at
214.
2
legislatures and courts. It will not go through
if it is supposed to imply that international
law lacks secondary rules of change and
adjudication of any kind. On the first reading
the inference is trivial. On the second reading,
the inference is fallacious, and egregiously
so.3
As shall become clear below, I agree with a great deal of
Waldron’s criticism
But I would like to focus attention on two problems
with positions such as Hart’s which Waldron sidesteps:
one general and one particular. The general problem
relates to what we have already seen: to a certain view
that could, only slightly uncharitably be dubbed rule
fetishism. Hart’s influential thesis whereby law comes
into existence when primary and secondary rules interact
is but one instance, albeit a conspicuous one, of this
general problem. Whether or not Waldron is correct that
3 Waldron, op. cit., 214.
3
Hart was guilty of a “grotesque”4 exaggerations in his
treatment of international law, there are other problems
with positions such as Hart’s, regarding which Waldron
himself appears to give too much of a free pass. This
“free pass” is the result of Waldron not really
questioning the appeal to rules: Waldron’s defense of
international law is that the mere fact that its
secondary rules differ from those of domestic law does
not entail that such secondary rules do not exist. But he
does not directly question the appeal to rules as such –
as I will do here.
The specific problem that I wish to discuss relates
to international criminal law in particular, be it in the
domestic or the international level. As I shall argue,
criminal law is itself fertile ground for a certain
narrowness of approach which includes a troubling form of
rule fetishism. Very briefly for now: this specific
problem is to see the criminal law as concerned with
4 Waldron, op. cit., 222.
4
particularly narrow understanding of what it is to
evaluate actions. I shall suggest that the future of
criminal law – again, both in its domestic and its
international incarnation – is much brighter if we avoid
these pervasive mistakes.
I. On the Origins of Rule Fetishism
It is important to remember that the very framework of
rules that undergirds Hart’s approach, and with which
Waldron is not particularly concerned, is a remnant of
positivism. Famously, Hart criticized classical Austinian
positivism by compellingly suggesting that its view of
law as “orders backed by threats” is uninspiring, and
that it fails to distinguish a legal system properly so
called and some other – non-legal – situations – such as
robbery by highwaymen, who are after all in a position to
issue orders and back them with threats. For Hart,
however, the crucial problem of classical positivism was
not its emphasis on rules per se, but that it only
5
appealed to one type of rule. Thus, Hart’s solution was
not to abandon the system of rules as such, but to add to
the primitive and simple rules of classical positivism,
what he termed secondary rules. That is why it is
precisely in connection Hart’s work that the term “soft-
positivism” gained currency. Hart is still a positivist,
albeit a “soft” one.
Recall too that, in this context, the quintessential
opponent of positivism was natural law theory, and that
what opposed these two schools of thought was the
metaphysical point as to whether something being law
could be determined independently of any appeal to
normativity – a possibility which the natural law
theorist denies and the positivist admits. Hart’s soft
positivism is a result of admitting some role for some
normative considerations in determining what exactly law
is. Admittedly, this role is limited – but here I will
suggest ways in which is too limited. My main
dissatisfaction with Hart’s soft positivism flows
6
precisely from the narrow focus on rules, and from the
ways that it shortchanges ethics.5
As it turns out, Hart’s narrow focus on rules is a
symptom of a large-scale phenomenon, visible in the work
of many highly influential analytic philosophers.
Elsewhere I attempted to diagnose the problem not only in
Hart, but also in two of the most influential
philosophers in the last fifty tyears: John Rawls and
John Searle.6 Here a summary of the phenomenon should
suffice. Hart’s distinction between primary and secondary
rules is to be placed in the context of the general 5 For the most famous objection against the appeal to rules
see Ronald Dworkin “The Model of Rules [I and II]” in his
Taking Rights Seriously, Cambridge, MA: Harvard University
Press (1977): 14-80.
6 See Leo Zaibert, Punishment and Retribution, op. cit., 144-154, and
Leo Zaibert and Barry Smith “The Varieties of Normativity:
An Essay on Social Ontology” in Intentional Acts and Institutional
Facts: Essays in John Searle’s Social Ontology” Savas Tsohatzidis (ed.),
Dordrecht: Springer (2007): 157-174.
7
distinction between constitutive and regulative rules.
This more general distinction, whose contemporary
understanding can be traced back to Wittgensteinian
motifs, is, above all, a matter of logic.7 Very roughly,
regulative rules guide us as to how we should do things:
it is a regulative rule of chess that one should not
bring out the queen too early. Constitutive rules do not
quite offer guidance – they actually create the practice in
question: in chess, the rule that bishops move diagonally
is constitutive of the game of chess, in the sense that
if someone moved her bishops in straight lines she would
simply not be playing chess.
Invoking a game, like chess, in order to explain the
distinction between regulative and constitutive rules is
the overwhelmingly standard move. But that move speaks
volumes as to the shortcomings of rules fetishism.
Consider, for example, one of the most influential
7 See Ludwig Wittgenstein, Philosophical Investigations, Oxford:
Blackwell (2009), passim.
8
articles by the most often cited living analytic
philosopher: Searle’s “How to Derive ‘Ought’ from ‘Is’”.8
On the standard interpretation, in this paper Searle has
something important to say about the age-old problem of
deriving meaningful normative statements from merely
descriptive ones. And the key to Searle’s alleged
demonstration as to how to do it was none other than the
constitutive rules of the use of the word ‘promise’:
since to say “I hereby promise to do X” means (in terms
of constitutive rules) that I ought do X. Voila – you have
derived an ought from an is! Of course, this is not the
sort of normative problem that has historically vexed
moral philosophers.9
8 John R. Searle, “how to Derive ‘Ought’ from ‘Is’”,
Philosophical Review 73 (1964): 43-58. For the claim that he is
the most often quoted living analytic philosopher see
http://leiterreports.typepad.com/blog/2015/05/the-most-
cited-living-philosophers-with-public-google-scholar-
pages.html.
9
And it is precisely this sort of humble, “soft
normativity” that pervades Hart’s view of law.10 In a way,
Hart sees law as a complex game. His forbears, the
classical positivists, did not see law as a game in this
sense, and that is why Hart complicated the picture,
turning law into a game-like phenomenon, with the all-
too-humble normativity of games. And now we are in a
position to reformulate Waldron’s objection to Hart with
which we started: Waldron points out that the fact (if it
is a fact) that international law is not quite the same
game as domestic law does not show that it is no game at
all. Waldron’s point, as noted, is correct as far as it 9 For more on Searle, see my “Intentions, Promises, and
Obligations” in John Searle (Barry Smith, ed.) Cambridge:
Cambridge University Press (2003): 35-54.
10 For more on soft normativity, see Leo Zaibert and Barry
Smith, “The Varieties of Normativity: An Essay on Social
Ontology” in in Savas L. Tsohatzidis (ed.) Intentional Acts and
Institutional Facts: Essays on John Searle’s Social Ontology, Dordrecht:
Springer, (2006): 157-175.
10
goes. But it could go farther. It is a mistake to think
of law – international and domestic, criminal and civil,
etc. – in terms of rules (at least rules modeled after
the rules of games) at all. In order to explain why it is
a mistake, I will take a closer look at the criminal law
in particular.
II. The Crying Game
While most criminal law theorists understand their field
in the decidedly narrow ways that stem from rule
fetishism, this is not always easy to show, since this
narrowness is often tacit, uncritical, or unconscious.
Antony Duff – one of today’s most influential criminal
law theorists – is, however, particularly useful for my
purposes because he emphatically and explicitly defends
precisely the sort of narrowness that I am here
criticizing. And so it is worthwhile to consider his
position in some detail.
11
In his “The Intrusion of Mercy”11 Duffs suggests that
to consider mercy in connection to criminal punishment
would be to introduce a consideration (mercy) that does
not really belong in the context of criminal punishment.
Duff does not deny either that mercy is a virtue, or,
more importantly, that sometimes punishers should behave
mercifully. But he is invested in stressing the fact that
the consideration of mercy is, as his title suggests,
always an intrusion. It is, moreover, not mercifulness
alone that Duff sees as an intrusion, but a host of other
values too – for the values which should matter to
criminal punishment are, for Duff, strictly narrow. In
other words, there is nothing about mercy in particular
that interests me here: had Duff written about “The
Intrusion of Decency”, “The Intrusion of Virtue”, “The
Intrusion of Elegance”, I would have focused on
“Decency”, “Virtue”, or “Elegance” instead.
11 R. A. Duff “The Intrusion of Mercy”, Ohio State Journal of
Criminal Law 4 (2007): 361-387.
12
Early in his article, Duff repeatedly tells us that
he is interested in the relation (or lack thereof)
between mercy and the criminal law. Remarks of the following
tenor appear often in the opening pages of Duff’s
article: “I will first […] need to identify the kind of
mercy that seems both morally and philosophically most
puzzling, at least in relation to criminal law”,12 “[i]n
the context of criminal law and punishment, mercy at
least involves remitting or mitigating a burden of
penalty…”,13 “my focus, like that of most theorists who
discuss mercy in the criminal law, will be on
sentencing…”,14 “how could mercy […] have any proper role
to play in a system of criminal law and punishment?”.15
Immediately, however, Duff turns to “an extra legal
example”16 of mercy which, he thinks, “offers a moral 12 Duff, op cit., 362.
13 Duff, op cit., 363.
14 Duff, op cit., 363.
15 Duff, op cit., 365.
16 Duff, op cit., 366.
13
analogue of mercy in the criminal law”.17 This is his
example:
A friend has done me some moderately serious
wrong: perhaps he has betrayed my trust in quite
a serious way, or used something that I told him
in confidence to his own advantage, in a way
that causes me serious embarrassment or loss. I
go to his home to confront him – to “have it out
with him”. I might not know whether our
friendship can survive – much depends on how he
responds to me; but my immediate aim is to
confront him forcefully with what he has done,
to make clear how wrong it was, to communicate
my hurt and my anger. I intend, that is, to
criticize and censure him: my aim is to get him
to understand, and ideally to accept, the moral
condemnation that is appropriate to the wrong he
has done. But when I reach his house, he greets
17 Duff, op cit., 366.
14
me with the news that his wife has just died. At
once (or so we might hope) my anger is replaced
by sympathy: even if I did not know his wife
myself, I share in his grief, and feel for him
in his loss. As for my complaint against him, my
determination to call him to account for the
wrong he did me, of course I do not pursue it;
indeed, one might hope that a true friend would
simply forget about it – it would be pushed from
her mind by the friend’s plight.18
I do not think that it is clear why Duff goes this
route. If it was so important to discuss the criminal law
itself (as Duff’s insistence at the outset indicated),
why did Duff not choose an example belonging to the
criminal law? Moreover, Duff is extremely careful to
avoid the word “punishment” (though he once uses the term
“castigate”19): all the wronged friend in Duff’s example
18 Duff, op cit., 366.
19 Duff, op cit., 368.
15
appears to wish to do is variously described as
“communicating”, “criticizing”, “censuring”, “calling to
account”, “complaining”, and even “confronting
forcefully” – but never punishing the wrongdoer. Duff’s
careful avoidance of the word punishment makes it harder
to understand how this example is truly “a moral
analogue”20 to anything belonging to the criminal law,
since whatever turns out to be the criminal law’s overall
point, surely punishing wrongdoers is part of it. Had Duff
simply said in his example that the wronged friend wanted
to visit the wrongdoer in order to punish him, the
analogy would have been much stronger, and the example
more useful. If, on the other hand, Duff were to join
other contemporary legal theorists in arguing that extra-
legal punishment does not really exist,21 then so much the20 Duff, op cit., 366.
21 See Michael Davis, “Punishment Theory’s Golden Half
Century: A Survey of Developments from (about) 1957 to
2007”, Journal of Ethics 13 (2009): 73-100, at 76 (fn. 8), and
Guyora Binder “Punishment Theory: Moral or Political”,
16
worse for his strategy of choosing an extra-legal case in
order to illuminate anything about (legal) punishment.
In any case, Duff believes that it would be
“obviously inappropriate for [the wronged friend] to
insist on talking about the wrong [done to him]”.22 With
this much I agree. But Duff appears to believe that the
(best? only?) way in which this inappropriateness could
be explained is through the mobilization of his
communicative account of punishment. About this, however,
I disagree. Duff believes that this inappropriateness
springs from the fact that the point of criticizing the
wrongdoer is “to get him to focus on, to attend carefully
to, the wrong [that he committed]”.23 “[G]iven what he has
now suffered”, Duff continues, “it would be callously
inhuman to expect him to do so”;24 “his attention will be
Buffalo Criminal Law Review 5 (2002): 321-371, at 321 and passim.
22 Duff, op cit., 367.
23 Duff, op cit., 367.
24 Duff, op cit., 367.
17
quite understandably, perhaps quite properly, focused on
what he has now suffered”.25
To the extent that Duff bases the inappropriateness
of insisting on talking about the wrong committed on the
wrongdoer’s inability to focus on the wrong he committed,
the communicative approach runs into difficulties.
Imagine that everything in Duff’s example remained the
same, except for the fact that when the wronged friend
arrives at the wrongdoer’s house, he learns not that his
wife has just died, but that the wrongdoer has just won
hundreds of millions of dollars in the lottery. Here,
too, it would be unreasonable to expect the wrongdoer to
focus his attention away from the millions he just won.
So, if what mattered were whether or not the wrongdoer
could indeed focus on, or effectively turn his attention
to, the wrong that he has committed, this ability can be
impaired by both sad events (such as the death of a
25 Duff, op cit., 369.
18
spouse) and by happy events (such as winning the
lottery).
If, on the other hand, it is only the inability to
focus that flows specifically from the death of a wife that
renders the insistence to talk about the wrong “obviously
inappropriate”, then Duff should have told us about it.
What makes it inappropriate to insist on talking about
the wrong is not the wrongdoer’s inability to focus
simpliciter, but the fact that his wife just died, or, if
you will, the fact that he-is-unable-to-focus-because-
his-wife-just-died. I believe that the inappropriateness
is related to important values about which Duff says
precious little, and which, in any event, have very
little to do with communication. Thus, imagine again that
everything in Duff’s example remains the same except that
your (no-longer) friend has been exposed as a serial
killer and child rapist. Would the fact that upon
arriving at his house you learn that his mother has just
19
died render your plan to confront him about his rapes and
murders “callously inhuman”?
Moreover, had Duff actually focused on punishment,
he would have noticed another shortcomings of his
approach. Assume that the wronged friend wanted to punish
the wrongdoer, that is, he wished to inflict on him the
suffering that he thought the wrongdoer deserved (and, to
simplify matters, that this suffering was also
recommended by whatever consequentialist rationales one
cares about). Clearly, the wronged friend could have done
this without any desire to communicate anything: he may
have gone to the friend’s house only with a desire to
slap him, without uttering a word; or he could simply
have gone there in order to secretly slash the tires of
the wrongdoer’s car.26
26 Obviously, these two examples constitute mere
descriptions of possible punishments, not endorsements. See
Leo Zaibert, Punishment and Retribution, op. cit. 59 ff.
20
And I think that even in these non-communicative
scenarios, the wronged friend, upon learning about the
fact that the wrongdoer’s wife has just died, should have
refrained from slapping him, or from secretly slashing
the tires of his car. Why? Because punishing this
wrongdoer, within the richer, tragic, context that his
wife has just died, is ugly. It is petty, churlish, smug,
self-centered, undignified, tasteless, tactless, and,
amongst many other things, downright repugnant. Again,
these reasons for not punishing this wrongdoer are based
on thick values which have no necessary connection to any
communicative enterprise whatsoever. More importantly,
they seem to have no place either in any game-inspired
understanding of law. There is no denying that
communicative acts of the sorts that Duff champions are
often valuable, and often extremely valuable. But neither
are they the only value that should matter for the
criminal law nor are other values simply intrusions. The
21
criminal law is not a communicative game – again, it is
not a game at all.
Since Duff believes that criminal punishment ought to
be seen as communicative through and through – just as he
evidently sees the example we have been discussing – he
does accept that in some analogous cases when criminal
defendants may be unable to focus on the wrong they have
done (because a major tragedy has befallen them), then
the value of things like mercy could somehow enter into
the criminal law picture. But, even in such cases, Duff
is emphatic “mercy marks, not an application of penal
justice, but rather an intrusion into the sphere of penal
justice by moral values and concerns that are not matters
of justice”.27 And Duff further stresses: “the criminal
courtroom, in which trial, conviction, and sentencing
take place, is a formal forum in which the various people
involved have their role to play”. These people are not
unencumbered, free “citizens who happen to have come
27 Duff, op cit., 381.
22
together”, and who may be seen as engaged in an
“unconstrained moral discussion” as to the defendant’s
guilt. They are, instead, “players in this game – a game
that defines their roles for them”.28
In a footnote, Duff offers the obligatory
qualification whereby his claiming that the criminal
courtroom is to be seen as a game “is not to imply that
it is either unimportant or detached from reality”.29 This
is of course old hat: it is the same sort of remark that
all other analytic philosophers make whenever they invoke
games in explaining the normative and axiological
dimensions of any realm. They do not mean to downgrade
anything, they insist on the fact that games merely are
an illustration, and so on. Whether they mean it or not,
however, positions such as Duff’s unquestionably exclude
from consideration precisely the normative and
28 Duff, op cit., 370.
29 Duff, op cit., 370, fn. 24.
23
axiological that are not amenable to be covered by
constitutive rules of games or game-like systems.
Just like in chess you ought not to move the bishops
in straight lines, a participant in a criminal trial
ought not consider matters “extraneous” to the trial –
the defendant’s life-story, the context in which her
actions have taken place, the standing of the state or of
this specific court to inflict suffering, and the very
nature of that suffering itself, to mention a few of
these matters ought to remain somehow off-limits. Like
horses that can only run with blinkers on, jurors and
judges alike ought to be limited in their field of
vision. Such is the game of the criminal law. Such is, in
Duff’s view, the game of inflicting suffering on people.
Interestingly, Duff actually admits that he is
defending an “avowedly limited, and in an important sense
shallow institution [of criminal law]”.30 But he thinks
that these limits and this shallowness are nonetheless
30 Duff, op cit., 376.
24
worth championing. And once again I disagree, for two
reasons.
First, Duff believes that “[t]hese kinds of
constraints [that undergird his limited and shallow view
of the criminal law] have a particular significance and
shape in a liberal polity that seeks to limit the reach
and scope of the criminal law”.31 Broadening the types of
values with which the criminal law is concerned, Duff
fears, threatens “a liberal system of criminal law”,
which in his view “should forbid” a sentencer from basing
“her sentencing decisions on an all-embracing
consideration of the offender’s whole life and
character”.32 This entails that sentencers – those charged
with making people suffer – should treat defendants –
those about to potentially be made to suffer – as
abstractions, whose roles and fates are in fact neatly
laid down by the rules of the game. And Duff thinks that
31 Duff, op cit., 371.
32 Duff, op cit., 371-372.
25
this is not only tolerable, but in fact the way things
should be: “a liberal system of criminal law that is to
respect its citizens’ privacy will need to abstract
agents quite drastically, if it is to avoid intruding
improperly into the deeper, more personal, aspects of
citizens’ characters and lives”.33
I share Duff’s worry. But evidently this worry is
out of place in cases such as the one Duff is discussing.
Even if a correct understanding of liberalism includes
respecting people’s privacy along the ways Duff suggests,
it surely includes also a particular view of the criminal
law. Part of the rationale for many a procedural matter
in the criminal law, is to protect alleged (or real)
wrongdoers from possible abuses in the way the state
wields its immense punitive power. As Ronald Dworkin
insightfully put it:
It would be a mistake to suppose that the
liberal thinks that these procedural rights will
33 Duff, op cit., 371.
26
improve the accuracy of the criminal process, that
is, the probability that any particular decision
about guilt or innocence will be the right one.
Procedural rights intervene in the process, even
at the cost of inaccuracy, to compensate in a
rough way for the antecedent risk that a
criminal process, especially if it is largely
administered by one class against another, will
be corrupted by the impact of external
preferences that cannot be eliminated
directly.34
So, the desire to not violate individual’s privacy
should be re-examined when putative infringements on said
privacy may in fact protect the individual in the sense
of the state not being able to punish her as much as
34 Ronald Dworkin, A Matter of Principle, Cambridge, MA: Harvard
University Press (1985): 197-198. For elaboration see Leo
Zaibert “The Moralist Strikes Back”, New Criminal Law Review
14.1 (2011): 139-161.
27
otherwise, or at all. This would admittedly constitute an
asymmetrical treatment: encroachment into privacy and
considerations of other, thicker values should only be
permitted in cases in which this is to the individual’s
benefit, and not in cases in which it may hurt her. But
this is neither uncommon nor problematic. There are many
instances in the criminal law in which we make exceptions
of these sorts in favor of the defendant: the in dubio pro
reo principle, non bis in idem, and so on.
Crucially, however, the reason why we may decide not
to look too closely into these thicker values when they
may harm the individual is not that they somehow do not
belong in the criminal law, as Duff has it, but rather
that we wish to protect individuals from an over-zealous
punitive state. No one can seriously doubt that the
consideration of a defendant who although acquitted of a
crime actually committed it is something that matters when
evaluating what she did. The reason we recognize the
“defense” of res judicata is not that we think that the fact
28
that the acquitted defendant actually committed the crime
“does not belong” or does not matter for our evaluation
of her conduct. Rather, this is a way of protecting
individuals in general (even if this particular defendant
“gets away with it”).
Second, however, this is not merely a matter of my
seeing Duff’s invocation of liberal sensibilities here
inapposite and extraordinarily weak. For I think that
Duff comes close to actually contradicting himself. Duff
admits that he is not even sure that this shallowness has
any practical relevance:
one might wonder why it matters whether we
understand mercy as operating within the
perspective of criminal punishment, or as
intruding into that perspective. Perhaps it
makes little or no difference to the practical
outcomes: but if we are to understand ourselves
29
and our practices, we must get clear about their
logic and the modes of thought that structure them.35
We thus come full circle. It is not really a concern with
liberal principles that animates Duff’s defense of a
criminal law that he himself admits is shallow – since he
is after all not even sure that this shallow criminal law
would operate differently from any less shallow criminal
law. Rather, what animates Duff is precisely the same
sort of concern with the logic of the rules fetishism I
diagnosed at the outset, and which has been a
quintessential staple of the recalcitrantly positivist
modes of thought attendant to such rule fetishism.
III. The Axiological Complexity of Justice
As Elies van Sliedregt reminds us, international criminal
law is concerned with the “criminal aspects of
international law, rather than with the “international or
transnational aspects of a state’s domestic criminal
35 Duff, op. cit., 373. Emphases added.
30
law”.36 International criminal law is essentially
concerned with the following four (types of) crimes:
genocide, crimes against humanity, war crimes, and crimes
of aggression. These are crimes that can only be
committed by states (or quasi states) or by agents acting
on behalf of states (or quasi states). Thus, if, for
example, an Australian man is accused of sexual assault
in Sweden, determining the correct jurisdiction in this
case is not a matter of international criminal law. In a
way, the distinction between private international law
and public international law is helpful in this context.
By international criminal law we always mean public
international criminal law, for it is standardly believed
that the crimes that are the concern of international
criminal law just cannot be adequately handled within
domestic criminal law jurisdictions.
36 Elies van Sliedregt, “International Criminal Law”, in The
Oxford Handbook of Criminal Law (Markus D. Dubber and Tatjana
Hörnle, eds.) Oxford: Oxford University Press (2014) 1140.
31
If international criminal law is indeed an outgrowth
of international law (rather than of criminal law), then
one would understand why it may be commonly be met with
considerable skepticism, for it would simply inherit the
sort of generic skepticism which typically meets
international law. But if I am right in thinking that
Duff’s overly narrow view of the criminal law are indeed
endemic, then we have the elements in place that allow us
to see the sense in which international criminal law may
be doubly disadvantaged. For in addition to having to
overcome the sort of generic skepticism that it inherits
from international law, it would have to overcome the
shallow view of what the criminal law is supposed to be.
The positivistic rule fetish undermines, even if in
different ways, both international law (in general) and
(domestic) criminal law.
In order to see how this double undermining plays
out, let us once more return to Hart. He sensibly points
out that “the simple truisms which hold good for
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individuals do not hold good for states”.37 He further
points out that “aggression between states is very unlike
that between individuals”.38 It is hard to imagine anyone
disagreeing with these observations. But he mobilizes
these sensible and harmless remarks in a not so sensible
and not so harmless ways: “in a population of a modern
state, if there were no organized repression and
punishment of crime, violence and theft would be hourly
expected; but for states, long years of peace have
intervened between disastrous wars”.39
Obviously, Hart wishes to defend a certain
disanalogy between domestic criminal law and
international law. Perhaps less obviously, however, this
disanalogy is in fact predicated on an analogy between
these two forms of criminal law. In these passages
37 Hart, op. cit., 219.
38 Hart, op. cit., 219.
39 Hart, op. cit., 219.
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(though not elsewhere),40 Hart appears to think that just
as in the domestic sphere criminal law seeks to prevent
crime, in the international sphere criminal law would
allegedly seek to prevent aggression (genocide, war
crimes, crimes of aggression, and crimes against
humanity).
As it turns out, I do believe that there is an
analogy between domestic and international law – although
not quite the analogy that Hart assumes. There is of
course nothing wrong with preventing crime, in either the
domestic or international contexts. But that is not the
essential task of the criminal law: in whatever the
context, the essential task is to bring about justice.
The analogy then would be that just as in the domestic
context the criminal law seeks to bring justice vis-à-vis
crimes committed by individuals (or smallish groups of
40 See, e.g., his Punishment and Responsibility: Essays in the Philosophy
of Law, Oxford: Oxford University Press (2008), where he
seeks to combine consequentialism with retributivism.
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individuals), in the international context the criminal
law seeks to bring justice vis-à-vis crimes committed by
states (or quasi-states, etc.).
And from this it of course follows that I too
believe that there is, in a sense, a disanalogy between
the domestic and the international contexts, although not
quite the one on which Hart focuses. The disanalogy flows
from the first of Hart’s harmless remarks quoted above:
what is involved in bringing about justice amongst
individuals (or smallish groups) is not necessarily
identical the same as what is involved in bringing about
justice amongst states (or quasi states). But the
disanalogy that I have in mind does not really map onto
the domestic/international divide. Rather, it is a much
more global claim: what is involved in bringing justice
about in one case need not be identical to what is
involved in bringing about justice in other cases – and
this holds true whether these cases are all in the
domestic context or all in the international sphere.
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Admittedly, bringing about justice is a complicated
affair. Operating with a broad understanding of
‘justice’, it ought to be admitted that there is
something unjust about the state of affairs that allows a
vicious billionaire to charge the virtuous pauper for the
small amount of money that the latter owes her (in a
narrow, rule-based sense of ‘owing’). Or consider the
differences between the war of aggression waged by a
relatively under-developed third world country against a
much more powerful country and the war of aggression
waged by a powerful nation against much weaker countries.
Sometimes, of course, the law needs to leave out certain
considerations, say, that this creditor is a billionaire,
or that this pauper will suffer tremendously if forced to
pay this amount, or that the billionaire is a nasty human
being, and so on. But any of these considerations could be
relevant to the overall assessment of the justice of a
situation. And the default position should be that these
considerations matter unless considering them is likely
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to issue in more problems than solutions: micro-managing
justice in this or that case can lead to less justice
overall.
But it is easy to overestimate the magnitude of this
complexity, particularly if one is in the grip of
positivistic modes of thought. Many aspects of life, and
many instances of extra-legal injustices, are complex –
and we often cope with them with relative ease and with
relative success. To dodge these complexities in the case
of the criminal law – be it in the domestic or in the
international context – by stipulating that they are
“intrusions” is to pay to dear a price for simplicity.
Similarly, it is only if one is in the grip of
positivistic thinking that one would think that this more
complex approach is somehow deeply at odds with a
manageable, working criminal law (in whatever context).
For example, just as it is not obvious that mercy is an
“intrusion” in domestic criminal law (even if it is
somewhat unclear what exact role this fact ought to
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play), it is not obvious, for example, that the fact that
due to the vagaries of the cold war Germany (and not
other nations) was the beneficiary of massive financial
help from Western victors is an irrelevant consideration
within the context of international criminal law. The
fact that it is unclear what exact role – if any – this
fact ought to play in administering justice within the
criminal law, should not entail that there is no such
role.
But this is just one example. All sorts of issues
related to colonialism, to history, to persecution and
ethnic cleansing, and even to sheer luck, may belong
within the context of international criminal law. That
the prospect of incorporating (some of) these sorts of
considerations may look messy is not a reason not to do
it. No one said that administering justice was supposed
to be easy and neat. Needless to say, I have not here
attempted to explain how to do this. All I attempted was
to warn against some popular reasons for perhaps too
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summarily deciding that these considerations are
“intrusions”.
39
