Abstract
In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened.
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Notes
Chehtman (2010, p. 114).
Ibid. (pp. 35, 43–46).
Ibid. (p. 6).
Ibid. (p. 38).
Ibid. (p. 90).
Ibid. (pp. 59–75).
Ibid. (p. 85).
Ibid. (p. 31).
See Plant (2011, p. 10).
Chehtman (2010, p. 34).
Ibid. (p. 36).
Ibid.
Ibid. (p. 35).
Ibid. (p. 36).
Insofar as the public goods include security and dignity and having a system of criminal law in force maximizes these goods. If this is his (implicit) argument, then he has become a consequentialist—only he dresses his consequentialism in the language of rights. In any case, more needs to be said on the precise relationship between these aspects of his account.
Chehtman (2010, p. 37).
Ibid.
Ibid.
Zimmerman (2011).
Chehtman (2010, p. 35).
Ibid. (p. 37). While these two statements—to believe that laws are valid reasons for action and to believe that one is bound by them—do not necessarily denote the same thing, they are treated as such by Chehtman.
Hart (1994, p. 55). I use the terms “attitude of acceptance” and “critical reflective attitude” interchangeably.
Martin (2014, Chapter Six).
Ibid. For a powerful (and well-known) argument on this point, see Finnis (2001, pp. 11–19).
Hart (1994, p. 116).
Chehtman (2010, p. 38).
Ibid. For a critical assessment of Practical Reason and Norms, see Martin (2014, Chapter One).
It is worth noting that Hart and Raz offer different “thin” accounts. Hart’s account (mentioned above) is silent about the role of the judge. Raz (in Practical Reason and Norms) places the claim that judges have a duty to apply the law at the centre of his account. I explore the problems with this argument (which I argue he has long since abandoned) in Martin (2014). I am doubtful that Raz’s own account is normatively inert, even though he presents his views in this way in Practical Reason and Norms. In any event, I suggest that the analytic portion of Chehtman’s account is normatively thicker than Hart’s or Raz’s.
Chehtman (2010, p. 39).
Recall that the first, thin reading of “in force” involves interpreting the claim that citizens believe that the law offers them valid (binding) reasons for action as signalling that citizens recognize that laws exist. The second, thicker sense, involves reading this idea as signalling a belief that the law offers morally valid reasons for action that are binding on citizens. I suggest that this second reading is akin to Hart’s idea of the “attitude of acceptance”.
Hart (1994, p. 116).
Fuller (1969, Chapter Two).
In other words, his argument is implicitly relying on the “focal case” method.
For a defence of this kind of position (which is Fuller-inspired), see Simmonds (2007).
Fuller (1969, Chapter Two).
For a notable exception, see Schauer (forthcoming, 2014).
Chehtman (2010, p. 40).
Ibid.
Ibid. (p. 37).
Ibid. (p. 100).
Ibid. (p. 140).
Ibid.
Do we have any reason to think that courts have a better knowledge of morality than most of us? If the answer is “no”, then the Normal Justification Thesis is inapplicable to courts. See Green (1989, p. 804).
Chehtman (2010, p. 142).
Raz (1986, p. 3). While it is not a strike against his account that it is merely “Raz-inspired”, such departures should nonetheless be flagged.
Consider, for instance, the issues that surround “joint criminal enterprise”. See Ohlin (2007).
Chehtman (2010, p. 5).
Paciocco and Stuesser (2008, p. 2). They write: “As a matter of principle, the rules of evidence should accommodate the presentation and consideration of any information that could help the trier of fact to come to an accurate factual determination. The animating principle that captures this sentiment is sometimes called the ‘principle of access to evidence’ … Yet the laws of evidence do not just facilitate findings of fact. They often exist to accomplish important policy objectives or to pursue principles of their own …. Denying such evidence to the trier of fact can impede accurate fact finding because the excluded evidence may be relevant and probative of the facts in issue. Yet the evidence is rejected because competing considerations are given priority over the value in coming to a correct disposition of the matter in controversy.”
For an exploration of issues surrounding the role of the defense, see May (2011).
Raz (1986, p. 46).
Ibid. (p. 218).
Ibid. (p. 80).
Ibid. (p. 74).
Ibid. (p. 61).
Chehtman repeats this point at 146. I discuss this point (and Raz’s concept of authority more generally) in Martin (2010, pp. 63–84).
Raz (1986, p. 58).
Chehtman (2010, p. 151).
Ibid. (p. 44).
Raz (1986, p. 47).
Chehtman (2010, p. 145).
Ibid.
Ibid.
Because of the relationship between the NJT and the DT, the NJT is also (on Chehtman’s account) connected to the claim that we have an interest in having a system of criminal law in force.
Raz (1986, p. 53).
Chehtman (2010, p. 148).
Ibid. (p. 5). If a lot of weight is being placed on the fair nature of procedures, more should be said about this complex issue. See Megret (2009).
Chehtman could have offered an account of the “piecemeal” nature of authority that explores the real-world obstacles that prevent the accused from receiving a fair trial when charged with an international criminal offence alongside a Fuller-inspired account of what it means for a legal system to be in force. This is where his argument takes readers and it is puzzling why Raz and Hart are appealed to in order to help shore up views that they do not champion in any obvious way.
Chehtman (2010, p. 147). Earlier in the chapter, he suggests that the bindingness of decisions can be explained by things “contained within” the NJT: “an interest important enough to warrant the protection of a right” and the empowerment of a “centralized authority” (p. 144). Elsewhere he argues that his own theory (i.e., the value of having a system of criminal law in force) is an additional reason to be considered alongside the NJT (and DT) (p. 166).
Chehtman (2010, p. 167).
Ibid. (p. 170).
Ibid.
Ibid.
Ibid. (p. 160).
Ibid. (pp. 160–161).
Ibid. (p. 161).
Ibid.
Ibid. (pp. 161–162).
When the conflict is one that occurs in nations that are not so powerful, we should not assume that power politics are not at play. Also see Megret (2002, p. 207). Megret underscores the deeply political nature of the ICC while also worrying that a turn to ICL can operate as a “fig-leaf for the international community’s inaction” noting that two of the ad hoc tribunals were created in the 1990s after gross failures on the part of the international community (p. 209).
Chehtman (2010, p. 136).
Ibid.
I agree with Chehtman that procedural abuses and corruption will always undermine the legitimacy of a trial. This kind of “abuse” is different from the worry raised that trials can be used as political tools. Chehtman’s reference to this issue at the end of section 4.2 threatens to confuse two distinct issues.
Chehtman (2010, pp. 135–136).
Ibid. (p. 7).
Ibid. (p. 135).
Ibid. (pp. 134–135).
Ibid. (p. 135).
Ibid. (p. 159).
Ibid. (p. 158).
Ibid.
Ibid.
Ibid.
Ibid.
Chehtman (2010, p. 100).
Ibid. (p. 137).
Ibid.
Ibid.
Mark Drumbl argues that atrocities often take place in situations that are governed by a “new normal” where what would be considered deviant behaviour in another context is considered normal or expected in the context in which they live. See Drumbl (2007).
The conclusion that I draw from this book is that we should put resources into supporting domestic systems of criminal law, as they are best placed to offer security to the population in question.
For the Hegelian version of this kind of argument, see, for instance, Brudner (2013).
Chehtman (2010, p. 137).
Ibid.
Ibid. (p. 138).
Ibid.
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Acknowledgments
I am very grateful to Danny Priel, Emmanuel Mellisaris and Lawrence Burns for their helpful comments. I would also like to thank Anastasia Pasecinic and editors of this journal for their excellent work.
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Communicated by Diana Nijenhuijzen.
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Martin, M. Reflections on Punishment from a Global Perspective: An Exploration of Chehtman’s The Philosophical Foundations of Extraterritorial Punishment . Criminal Law, Philosophy 8, 693–712 (2014). https://doi.org/10.1007/s11572-014-9330-5
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DOI: https://doi.org/10.1007/s11572-014-9330-5