By MAKSYMILIAN DEL MAR
Review of The Sentimental Life of International Law: Literature, Language, and Longing in World Politics, by Gerry Simpson
Oxford: Oxford University Press, 2021
I.
How can one, and how should one, write about international law? What language, what style, what genres make international legal scholarship as a field, and with what consequences? Could another international law be made if we changed our ways of writing about it—changed our languages, our styles, our genres, and at once our attitudes, tones, sensibilities, and sentiments?
These delicate and difficult questions lie at the heart of this new book by Gerry Simpson. Asking them illuminates the ethics and politics of scholarly writing, wrapped up as that is with one’s identity as a scholar, and with what role and value one thinks scholarship has in public life. They are also questions that shine a light on international law itself. After all, given the news we are saturated with on a daily basis—of the ever more dispiriting alleged failings of international law—the kind of writing, accompanied by the associated tone, attitude, sensibility, and sentiment, that one might be tempted to undertake is either one of melancholic resignation about, or, alternatively, aggressive indignant prosecution of, international law’s great miseries. A lament or a prosecutorial brief, then, come ready to hand as available genres. But is that the only way forward? And wouldn’t either of these genres only play into the hands of the contemporary media portrayal of international law, thereby also endangering the role and value of international legal scholarship? So again, how can and how should we write about international law?
In tackling these questions, Simpson looks into, and then at international law from the vantage point of, a range of surprising places, and tries on a range of registers—different and unfamiliar ways of writing international law, and thus also different and unfamiliar kinds of tones, attitudes, sensibilities, and sentiments. In doing so, he avoids those genres of lament or straightforward prosecutorial brief. He avoids, too, the sonorous utility of a professional treatise, accompanied by rather solemn and serious conviction, if not a sense of stalwart pride and even enthusiasm or “high mindedness” (26). Instead, he is draws on and hunts down the awkward spaces, the misshapen, the perverse, the absurd, the accidental, the incongruous, the irrelevant, the irreverent, the “obscure,” the “muddy” (18), that which is in “the fringes” (56) or found in the “subterranean” (211). He does this partly in a bid to de-instrumentalize the field, to produce, as he disarmingly announces, “the most useless book in the history of international law” (6), but partly also to provoke us, to raise us from our dogmatic slumbers, and invite us to think about how we write, why we write, and what would happen if we wrote differently.
Most refreshingly, Simpson is not afraid of taking “a wrong turn,” of being embarrassed, of being thought to be a fool. Quite the contrary: he swerves, “playfully, rebelliously, and scurrilously” (8), speculating, hesitating, postulating, hypothesizing, punning, fantasizing, gossiping, juxtaposing, quipping, raconteuring, indeed delighting in indirection or even misdirection. He is enjoying himself—finally, an international law scholar taking pleasure in writing about it!—and so do we, as readers, reading him.
Of course, it’s not all fun and games (or, rather, it is all fun and games, but that really matters). For in writing as he does, and in asking the above questions about how to write, Simpson holds up a mirror—not necessarily a kind one—to international legal scholarship. He thereby invites international legal scholars to take a long hard look at how they write about international law. The first step here is the very invitation to scholars to see themselves as self-conscious literary craftspersons, as artificers or makers (in the old language of poeisis) of international law. International lawyers, Simpson argues, make something with language; international legal scholarship is a culture (or numerous cultures) of expression and communication, of symbol and accent, of grammar and the turn of a phrase. More than what is written about, or what arguments or claims are made on behalf of international law, he suggests, what matters is how we write, and the voice that is thereby created, with its accompanying gestures and postures, and thus also tones, attitudes, sensibilities, and sentiments.
“Sentiment” is indeed an important element in this approach, though it is a label for a broad range of phenomena for which we have a range of words: passions, affects, and emotions, as well as tones and attitudes. Simpson’s book is in many ways a reflection on the politics of sentiment (taken in a broad sense) in scholarship as mediated by certain forms of writing (certain kinds of languages, certain styles, certain genres). Part of the point, then, is to uncover the entanglement of emotion, politics, ethics, and writing in the making of international legal scholarship. Again, that’s that first step, inviting us to be aware of ourselves as creatures and communities made with languages. But part of it is also to begin to carve out a tone, attitude, sensibility, and sentiment, mediated by certain modes of writing, that hangs on to both “cynicism” and “hopefulness,” to “scepticism,” sure, but a “passionate, puckish, kind-hearted scepticism” (8). Although this gives a sense of direction, the space it carves out is still a large one, which can be filled by numerous modes, styles, and genres of writing. Simpson is holding up a mirror to us all, but he also speaks in front it: he is not just raising questions; there is also a voice of his own that emerges.
Articulating that voice requires Simpson to take up the first-person: to speak to us intimately, though also anecdotally, sometimes light-heartedly, sometimes confessionally, and thereby also to open himself up to scrutiny. This is bold and courageous, and it’s also very important, for it puts its finger on the relation between the personal and the political (imbricated as both are in the scholarly). As Simpson puts it in a typically striking passage:
So the literary account of international law enacted in these pages is already a politics of international law: a plea for a combination of ironic laughter and earnest commitment as a response to the problem of private doubt and public cruelty or wrongdoing. This is not an escape into shoulder-shrugging but a realisation that legal politics is an intensely private reckoning with the self (and its neurotic, libidinal urges) as well as a series of solidarity gestures with others, that in these groundless, post-metaphysical times, we simply have to keep on, making things grow, failing to describe—but re-describing again—unassuageable sadness or grotesque cruelty, caring for friendships, laughing at the pomposity of liberal rationalities and the cruelties of illiberal tyrannies, offering sympathy and hospitality to strangers (28).
Revealingly, the two terms that appear most in the above passage are “laughter” and “cruelty” (laughter twice and cruelty thrice). Laughter itself can be (perhaps must to some extent be?) cruel, but is all the more powerful for it, especially when it is directed at oneself. And that is precisely what Simpson is not afraid to do: to laugh at himself, while simultaneously taking seriously the cruelty, the tragedy, the sorrow of what international law deals with. This is indeed to echo the peculiar and unfamiliar, to our ears, ring of “sentiment” in the Scottish Enlightenment, or at least a certain strand of it, which recognized varieties of the comic (irony, satire, parody, caricature) as vital forms of critical self-reflexivity, for both individuals and communities. But not only: for in addition to that period in Scotland, one can point to a number of moments or figures that have also reveled in the serious playfulness, and self-undermining and self- and community-transforming, capacities of comedy, such as Aristophanes (in the preface, Simpson mentions Pasternak, the “cloud-dweller” (vii), but not the author of The Clouds), Lucian of Samosata, Erasmus of Rotterdam, Thomas More, Miguel de Cervantes, Francois Rabelais, Michel de Montaigne, and of course one of Simpson’s own favorites, Laurence Sterne, to mention but a few serio-comic thinkers and writers who could, following Simpson, serve as style guides to the writing of international law, and at once its ethics and politics.
Laughter at oneself, tears at the cruelty of others: both open up the interior life of scholarship. It is the self—the soul—that is at stake when we write as scholars. It is by transforming ourselves that we then also transform the fields we study. But when and how do we see the self? When can we catch our own soul, in action, and see it for what it has become? Psychoanalysis, as Simpson well knows, has helped in this regard, with its attention to slips, jokes, dreams. But it’s not the only source—“the acknowledgements at the beginning of a book” (39) is one, but one could well mention other sources, the so-called minor or ephemeral genres of writing, e.g., footnotes, reviews, manners of citation, marginal notes in the books of others, website profiles, CVs, reference letters, twitter headers, and other more-or-less self-conscious presentations of the academic self, and expressions of how one relates with other scholars. These seemingly innocuous and largely invisible forms are important because they are windows onto the academic self—the affective life and identity of the scholar, and thus also a scholar’s attitudes to the role and value of scholarship in public life. As Simpson says, this attention to “trifles,” to “smallness,” to “the everyday,” to the “informal,” “the asides of the spirit” (quoting Vladimir Nabokov) (54), is a serious ethical and political matter: it is perhaps where the emotions, the passions, the sentiments, can be found most clearly, and these in turn are key to what we do when we do scholarship.
Having set out the task, and argued for its importance, in the first two chapters, the remaining five in Simpson’s book explore, through different stylistic, generic, tonal, and sentimental media, five ways of writing international law. Chapter three tackles comedy, with special attention to irony and blasphemy (and I will return to this below). Chapter four is on bathos (in literary theory, a descent from the sublime to the ridiculous) and its relations with memory, mainly by reference to the notions of the precedented and the unprecedented in international criminal law. Chapter five engages with recent debates over the place of history in the methodology of international law scholarship, putting critical pressure on the rather cold and lifeless notion of “method” and suggesting alternatives (i.e., a stranger, more defamiliarizing, speculative and imagistic historiography). Chapter six draws on friendship, and especially the literary figure of “the friend,” associated as this might be with elegy, to see whether there might be a politics of friendship in international law. And, finally, Chapter seven, turns to gardening, and to the genre of the pastoral, in a bid to see whether there might be some redemption, some hope, a certain kind of reclamation of the utopian imagination, left in the old beast yet (for more on gardening, in the eighteenth century context, see also Giancarlo Carabelli, On Hume and Eighteenth-Century Aesthetics: The Philosophy on a Swing, especially Part 3 on ‘The Garden of the Ha-Ha’, and recently, Aaron Santesso, ‘The Narrative Garden’ (2022) 46(1) Eighteenth Century Life 1-36).
Throughout what Simpson is working his way towards, in indirect and roundabout ways that perform what he is arguing for, is a mode, a register, as he puts it:
...of speaking international law with hesitation not conviction . . . with a sardonic lightness and nuance, not with oppressive solemnity, without risking bathos or absurdity or the dead hand of relevance, while keeping at bay the cynicism that sometimes threatens to engulf our best selves. (209)
Such a tone, attitude, sensibility, and sentiment, he says, might just make it “possible . . . to make international law, again, a compelling language for our times” (209).
II.
Although Simpson tries on, as I’ve mentioned, a range of registers, the one that struck me as being at the core of the book was comedy. What would comic (legal) scholarship be like? Why might it be important that such a register is possible, especially, but not only, for international legal scholarship? What are the politics of such a register—the politics of the comic disposition? When is taking on such a register, and mode of writing, helpful? For instance, comedy can sometimes, if not often, and unhelpfully, be not much more than the expression of a self-congratulatory smugness of superiority, reinforcing social norms, and a mockery of others. So can it be something else? At stake here is the question of whether comedy can be a mode of ethical and political vigilance, protecting us against solemn high-mindedness and professional hubris, allowing us to reflect critically on ourselves and our limitations, and thereby also generating insight, and perhaps even hope.
The question of whether such a form of comic scholarship is possible is by no means easy. And Simpson is very much aware of the dangers of easy answers. He realizes, for instance, that “irony can be an enemy of deep moral sensibility, an antipolitics,” an “implicit call to leave politics behind, to detach oneself from the conditions of life, to accept the existing dispensations” (75). It is, he acknowledges, important to be reminded of the gap between official, formal, and professional languages of international law, and the events, especially the crimes, they seek to address (the horrors of genocide and nuclear war), and thus thereby to see those languages as absurd, and thus always inadequate, attempts at encountering horror, but that still only leaves us with a sour taste in the mouth, and not much more. Simpson wants to push this much further. He wants to ask whether another kind of irony is possible—an irony that results in mindfulness or Arendtian thoughtfulness (see 78). He is on the hunt for an active, more vigilant, more self-reflexive, more positively political form of irony—a hopeful irony.
That’s a hard diamond to find, but I like where Simpson looks for it: not in the irony of Socrates, but rather in Diogenes, and his “cheekiness from below” (79). This is less an “ironic self-questioning” (which may still, let us be clear, be important, but just insufficient), and more an “instinctive contrapuntal laughter” (79). Interestingly, when he comes to describe this kind of comic disposition, Simpson begins to speak of its physical manifestations, its embodied practices: kynicism here (which my word processor wants to change quickly to “cynicism”) is sensual and expresses itself in action. It is a sort of kynical (and kinesic) comic rebellion (for a recent exploration of the relations between comedy and kinesis, see Guillemette Bolens, Kinesic Humour: Literature, Embodied Cognition, and the Dynamics of Gesture). Again, Diogenes is the best guide:
[T]he Diogenes I want to invoke here is the existentialist who sits in his tub asking Alexander the Great to stop blocking the son, the Diogenes whose (anti)biopolitics is a form of scatology and, especially, the Diogenes for whom laughter was an instinctive rebellion against social super-norms. (85)
Are there any parallels to the actions of Diogenes in the somber world of international law? Simpson mentions the moment in Tokyo in 1946, when Shumei Okawa “slapped Tojo over the head in a piece of slapstick comedy that prefigures the later hanging of Tojo”—a “symbolic decapitation” that “mirrored the judicial decapitation of the Japanese military and political elite by the Allies” (85). Whether the example works will be for others more familiar with that history than me to judge, but it is clear what Simpson is after: comedy as defiance, as rebellion, as “close-to-tearful laugher,” sometimes “physical exclamation”—a sentimental comedy, in the best sense, “a desperate wish,” as Simpson puts it, “to see it different” (87), or to make something normally invisible visible (the emperor is blocking the sun!).
Simpson’s search is important—all the more so because it is a difficult one, a search for something quite ineffable, i.e., the critical, world-making, world-disclosing, and even hopeful spirit of comedy. At stake is one kind of tone, attitude, sensibility, or sentiment we might adopt, as scholars, which also translates into a form of action (for instance, writing, but not only), that is neither mere hope, nor mere distancing, but both at the same time, a kind of blasphemous vigilance. Perhaps this is still too difficult to grasp, but the task, the search, is surely an important one: important for the life one may lead as a scholar, important for the battle of one’s soul and, at once, the soul of international law.
Future iterations might look not only to the eighteenth century—to Sterne for instance, as Simpson does—but also to Renaissance humanism. In many respects, what was very much at stake in that cultural movement was whether to write, as a humanist, in the public domain, and if so, how to do so. Should one withdraw to the republic of letters, and not enter the service of kings and queens, or should one instead participate, and if so how—in particular, does public service require one leave aside one’s humanist training, one’s literary, rhetorical, and artistic sensibilities, or is it a helpful and indeed necessary part of any such service? One key figure who addresses these questions head-on, at once also defending the political value of the liberal arts, looking back as he does so to Lucian (the second century CE satirist), and even further to the Greek sophists and their rhetorical craft, is Sir Thomas More. Writing in 1515 and 1516, when on the verge of entering—and deciding whether to enter—into Henry VIII’s council, More’s Utopia is a highly playful, witty, and self-reflexive reflection on whether to write, and how to write, and especially whether it was possible to be a civic humanist, i.e., someone who was both counsellor to kings and a person of literary sensibility.
Answering with a confident “yes” (which as we know was to end in tragedy), More rebukes the solemnity and high-mindedness of Raphael Hythloday (traveler to the land of utopia), who has the right kind of intuitions (e.g., attacking the execution of thieves in enclosure-dominated England), but is much too flat-footed in the way he communicates. The problem with Hythloday is that he has no literary sensibility; he communicates much too directly. What is needed, says More, is an indirect form of communication—precisely one mediated by the comic writing he undertakes in Utopia. This is a comic register where the author is prepared to laugh at himself, and More does that in all kinds of ways (beginning with punning on his name, which in Latin means fool). Importantly, this means that the civic humanist exercises humility as to what can be achieved by their counsel. But the matter is not hopeless. Although the civic humanist, through their indirect, fictional, playful mode of communication, may not be able to make things better, they can at least make things a little less bad than they might otherwise have been. More’s Utopia, then, is an emblematic text of ironic hope, and an icon of how one can—indeed, that one should—marry up literary sensibility with public service.
Renaissance humanism, then, and its reflections on how to write when advising kings and queens—how to be a literary counsellor—is one possible resource for any future iterations of Simpson’s project. A comic scholarship is possible—as More shows, as indeed does his long-time friend, Erasmus of Rotterdam. Not only is it possible, but it’s precisely what a polity needs: the ethics and politics of comedy, especially when written by an author willing to laugh at themselves, and able to be humble, knowing they can only at best makes things a little less bad, is a gift to a community. A text like More’s, full of “hesitancy” and “delicacy,” “stealth and indirection” (8-9), slants and angles, full of quips, puns, and juxtapositions (10), has the capacity to do what Simpson wants writing to do: to “re-energise our (legal) politics” (27). It is, we might say, with some cheek, “the most useless book” in the history of political thought.
But Renaissance humanism may not be the only source. Another is the Ancient Greek practice of Old Comedy. This source, in turn, may help to counter one of the limitations of writing that one begins to encounter in Renaissance humanism, and which only intensifies after, namely: the cult of the author hero. Simpson is, in fact, aware of this danger—i.e., of the relations between writing and the individual capitalist, the great captain of letters syndrome, accruing literary capital—for he mentions at one moment, drawing on Carol Gilligan, the “highly masculinised account of living and writing” that characterizes so much of the writing of international law: of the heroic I, the sole authored book or law review article, which is also often “deracinated, depersonalized, formally circumscribed,” and written as if from a “view-from-nowhere” (35). Simpson worries, very much, about being the aristocratic “man of feeling” of the eighteenth century, indulging in his own sentimental anxieties, only to emerge as a hero that guides us out of the long grass, and into the sunshine of metaphysical meadows. But if we are serious about this, as Simpson clearly is, then how what modes of writing, what cultures of writing, might we need to introduce to counter it?
Here is where some of the forms of Old Comedy in Ancient Greece might help. As Page duBois has recently argued, in her book on Democratic Swarms: Ancient Comedy and the Politics of the People, the genre of old comedy employed, amongst the individual dialogues and male agons, collective voices and collective modes of expression. “The collective, the chorus, the wasps, birds, clouds, and rebellious women” (duBois, x-xi) of Ancient Greek old comedy might help us see this genre differently and recover a kind of democratic politics from it. These choral voices are, as Simpson is also looking for, voices of rebellion and blasphemy, but this time not uttered by heroic single, male authors, but rather by collectives of materials, or animals, or women. They are often “riotous, crude, vulgar, dancing, insulting, communal, often utopian” (duBois, 1). Of course, they are still, when performed on those ancient Greek stages, men dressed up as women or as animals, but perhaps we can, suggests duBois, read them as exemplars for another kind of writing, and another kind of politics. They are a collective mode of speaking back to power, very much a physical rebellion, a kynical blasphemy, a riot of defiance, all the more striking for being social rather than individual. In this reading, the collective politics of comedy offers much more hope than the epics and tragedies of individual heroes. The register of tragedy dominates, arguably, international law scholarship: might it not be time for comedy, and especially for collective comic writing?
III.
There is one more brief observation I’d like to make about Simpson’s book. Simpson is surely right to stress the magic and power of writing—of how we make ourselves and our communities with language, and all its many forms, modes, and genres, which are carriers of our emotions, and therefore also our attitudes, our knowledges, our normativities. But the other side of writing is reading, and reading cultures and habits matter as much, or even sometimes more, than the cultures and habits of writing. Simpson is aware of this, but it does not feature prominently in his book, and yet perhaps it is of greater significance than meets the eye.
There have been other periods in history when scholars were attune to and self-conscious about how they wrote, but also importantly, how they read. Simpson is certainly right to point to Enlightenment Scotland, and in some respects it is hard to beat the rhetorical and stylistic self-awareness of David Hume and Adam Smith and their literary colleagues. Approaching Enlightenment Scotland, as not only a culture of writing, but also a culture of reading, would be one promising line of inquiry.
But another candidate must surely be the culture I mentioned above, i.e., Renaissance humanism. The work of scholars in the fifteenth and sixteenth centuries—e.g., Erasmus, More, and Montaigne—is exemplary for its attention to the ethics and politics of style, expression, and communication. This was no less so for jurists in this period; indeed, in many ways jurists—e.g., Andrea Alciato, Guillaume Bude, and George Buchanan—were at the forefront of the famous ideal marriage between eloquence and wisdom, themselves writing in many different forms and genres. However, these cultures of writing were held up and enabled by cultures of reading. As Anthony Grafton has shown (see Anthony Grafton, ‘The Humanist as Reader’ in Guglielmo Cavallo and Roger Chartier (eds.), A History of Reading in the West, 179-212), much was expected of the reader in this period: readers were, for instance, expected to have read the classics, in certain ways, and thus to be prepared to work with writers in their play of allusion and citation to texts from the past. In fact, in many ways, Renaissance writing is a form of reading—one would be hard pressed to find a better example than Montaigne—transforming what was read precisely into exemplars of eloquent wisdom.
This makes one wonder whether scholars, including legal scholars, might benefit just as much, if not more so, from attention to reading, as they surely would from attention to writing. Just as there are playful and rebellious forms of writing, so there are playful and rebellious forms of reading. Just as we may speak of creative and inventive writing, so we may speak of creative and inventive reading. To some extent, writers and texts make their own reader—and Simpson’s book does invite its audience into a certain kind of reading (exploratory, experimental, meandering, but still caring)—but only to an extent. Writing, and self-consciousness about writing, of the kind that Simpson advocates, also depends on our formation and disposition as readers.
Will Simpson’s book be treated by certain “professionals” as an indulgence, an optional read amongst all the necessary things that must be read, and consumed quickly? How we read now is as key, I would suggest, a question for legal scholarship—international and otherwise—as how we write now (see also Michelle Boulous-Walker's, Slow Philosophy: Reading Against the Institution, and Matthew Rubery and Leah Price's Further Reading). If we are not readers who enjoy reading difficult texts—like those Renaissance readers, who loved riddles, paradoxes, veiled messages, fables, parables, and emblems—then there is little room for a writing that enables and satisfies such reading desires. Perhaps we need, then, to find a way to intertwine reflection on, and pedagogies of, writing and reading simultaneously? We are, after all, not only a community of writers, but also a community of readers.
There are a number of times when reading is mentioned in Simpson’s book (e.g., in chapter five when Simpson mentions Carlo Ginzburg’s call for more attention to ‘the readers of history’: fn. 80, 134), but perhaps the most telling, fittingly, is in the acknowledgements: “Many people,” Simpson says, “helped me hold the world of this book together by reading chapters, offering comments, urging me on” (viii). Like writing, reading too is a precious labor: and, in the case of Simpson’s book, also very much a pleasurable one. Let us hope Simpson’s book finds many readers who read like he writes: with hesitancy more than with conviction, with delicacy, and with self-reflexive and hopeful irony.
With that mode of reading in mind, let me suggest, hesitantly, that perhaps there are also alternative readings of some of the texts that appear in Simpson’s book, which he is less fond of, such as those novels of “the man of feeling,” who, seemingly, indulges in observing his own experience of sentiment. Eighteenth century Scotland, after all, is the time and place where much emphasis is placed on the role and value of the emotions in the making of judgements. Both philosophical and literary texts of the period—including Henry Mackenzie’s Man of Feeling or his Julia de Roubigné—could be read less as exemplars of “the lure of sentimental indulgence (tears, melodrama)” (50) of aristocratic men who discover their emotional side, and perhaps more as attempts to problematize and train affective judgement, precisely to enable reflection on the dangers of gushing with feeling. That this is a plausible reading is suggested by the heightened self-awareness and formal reflexivity of Mackenzie’s work, e.g., as in his preface to the above epistolary novel, which frames (via a series of accidental encounters) the fictional discovery of the letters by its would-be translator. The letters in Mackenzie’s novel contain multiple judgements of varying quality, and their very content, with the characters in the novel writing to friends (whose replies we never see), in many ways perform and explore the complex dynamics of Smithian moral judgement (see also Jeanne Britton’s reading of the novel in her Vicarious Narratives).
Given that emotion, sentiment, plays such a crucial role in how we judge, these writers say, so we need to find ways to slow that judgement down, to accompany affect with reason. It’s not that we should eradicate sentiment—that we cannot do, for we are creatures who judge by feeling—but we can, and should, find ways of educating our affective judgement, so as to make ourselves more aware of the proclivities and dispositions of our sentiments. Comedy (as Sterne showed) can be one such corrective, introducing, through indirect means, ways of seeing ourselves and laughing at ourselves as judges, not taking ourselves too seriously, not being too high-minded and solemn about our capacities to judge. But there are other forms—and the literary devices of, say, letter writing, as in Mackenzie’s work, offer one such example—where we can, through encountering different perspectives on some common events, find mirrors to ourselves. Literature, it turns out once again, is of crucial ethical and political value: it enables us to combine self-critique and hope, while enjoying ourselves. What could be more important—dare I say, more useful—than that?
Posted on 5 January 2023
MAKSYMILIAN DEL MAR is Professor of Legal Theory and Legal Humanities at Queen Mary University of London. He dedicates this essay to the memory of Karen Knop.
