Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie

Noting the enormous media interest in the war crimes trial of Klaus Barbie, and the surprising emphasis of this coverage on its cultural significance, this essay provides a literary reading of the trial as a contest over identity. More specifically, it treats the trial and its coverage as a struggle among competing groups - including the French state, various strands of the French left, the French right, resistance veterans, holocaust survivors, Zionists, Arabs, anti-colonialists - for the power to represent Nazism. All of these groups sought to define Nazism so as to claim a privileged identity as essential victims or opponents. Drawing on over 2000 media accounts, the essay explores how the historical background of the case caused it to assume such significance, how both international and french legal doctrine made the ideological content of Nazism particularly salient, and how French criminal procedure privileged these different interests as parties to the case and so brought them into public conflict with one another. The essay also reviews the theological conflicts within Judaism and the philosophical and ideological conflicts within the French left that were dramatized at the trial and in its media coverage. Finally, the essay treats the widespread urge to identify causes and communities in opposition to Nazism as a culturally prevalent trope, reflecting to a common crisis of faith and survivor guilt in the face of atrocity. The essay critiques this trope, however, as enabling groups to claim a fictitious coherence and conviction by ascribing an enviable and equally fictitious coherence and conviction to an enemy. The essay concludes by urging readers to resist the temptation to consume the Holocaust as an object of moral edification

The Case for Self-Determination

This lecture offers an analysis and defense of the right of self-determination of peoples. The argument begins by analyzing self-determination into its universalist and nationalist components. The universalist component of self-determination is satisfied wherever institutions of government are majoritarian. The nationalist component of self-determination is satisfied to the extent that institutions of government are identified with particular communities. The universalist compoent is now widely recognized as an authoritative principle of international law. The nationalist component remains controversial, particularly outside of the particular context of the dismantling of European colonial empires. The lecture proceeds to defend the nationalist component by attacking the reduction of self-determination to the rights of individuals. The lecture argues that group autonomy achieves the distinctive good of enabling and preserving group identity. Conceding that group identities are contingent rather than natural or immutable, it nevertheless argues that such identities are valuable, because we can define and advance our moral ends only through joint action. The lecture concludes by arguing that we are justified in forming political communities for the pursuit of those ends

Beyond Criticism

During the 1980’s, Critical Legal Studies was frequently criticized for offering no policy prescriptions. This essay explained critical scholars’ reluctance to propose policy as a reflection of their epistemological and political critiques of instrumentalist policy analysis. Because critical scholars saw both causal relationships and interests as highly contingent on normative assumptions, they were skeptical of claims that well-intentioned law reforms would benefit the interests of the poor and the powerless. Valuing democratic participation, critical legal scholars were also reluctant to define the interests of the powerless for them. The essay proceeded to argue that critical legal scholars should see instrumentalism as not just a set of ideas, but a pervasive and resilient culture sustained by mutually reinforcing institutions, identities and values. It concluded that critical scholars could offer useful proposals aimed at disrupting instrumental culture and creating space for democratic self-definition

On Hegel, On Slavery, But not on my Head!

This Article, a sequel to “Mastery, Slavery and Emancipation,” amplified its claims that slaves conceptualized freedom primarily in solidaristic terms as social and political participation, and recognition rather than as individual autonomy or economic opportunity. It replied to skeptical objections offered by Critical Race Theorist Kendall Thomas and offered a solidaristic reading of the autobiographies of Fredercik Douglass and Sellah Martin

The Dialectic of Duplicity: Treaty Conflict and Political Contradiction

When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency

States of War: Defensive Force Among Nations

Book review of "Defending Humanity: When Force is Justified and Why" by George P. Fletcher and Jens David Ohli

The Slavery of Emancipation

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still often assumed that ex-slaves would need to be governed by whites. A discussion of manumission, self-purchase and labor contracting in the antebellum U.S. argues that although these mechanisms were less common than in other slave societies, they were nevertheless important until the decades immediately preceding the Civil War. The article concludes that the narrow interpretation of the Thirteenth Amendment that prevailed merely conferred on African Americans the liminal status typically occupied by manumittees in a slave society. The institution of slavery arguably survived in the form of a racially defined subordinate status, reducing the autonomy and income potential of all African-Americans

Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History

No mere appendix to the Constitution, the Thirteenth Amendment reframed the nation. But if the nation emerged from its crucible founded anew, who were its new founders? I will argue that it makes a moral difference to whom we credit our new birth of freedom and that credit is due the slaves. Recognizing the slaves as framers might change the implications we find in the Thirteenth Amendment, making it a more potent weapon in the arsenal of civil rights advocates. But my present purpose is neither to explicate the values of the slaves, nor to apply those values to Thirteenth Amendment issues, nor to calculate the benefits to anyone of so applying them. The instrumental value to us of any interpretation of the Thirteenth Amendment depends on the prior question of how we define ourselves and our interests. My present argument goes to this prior question by urging contemporary Americans to define themselves as political descendants of the slaves

Institutions and Linguistic Conventions: The Pragmatism of Lieber\u27s Legal Hermeneutics

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all practical purposes as public and social rather than private and psychological. Lieber synthesized these views in his own account of legal interpretation as the hermeneutic perpetuation of institutions. He regarded lawmaking as the intentional enactment of public language rather than the enactment of intended meanings, while acknowledging that language was an historical artifact that changed meaning over time. Similarly, he regarded the effort to control future interpreters through detailed rulemaking as futile, and substituted an ethic of fidelity to institutions for an ethic of fidelity to text or original intent

What\u27s Left?

Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic association as an alternative model of transformation and defends this project against the deconstructive critiques of participatory democracy and community. The logical extension of these arguments would preclude radical politics altogether and replace it with critique