Legalism

"This is by a political theorist who taught at Harvard but whose first experience of politics was actually as a refugee. Her family fled from Latvian anti-Semitism and Nazi and Soviet totalitarianism, they fled via Sweden and Japan and Canada and then she wound up teaching at Harvard. Sadly, she died very suddenly in 1992. It’s political philosophy but written from the perspective of the victim of politics. It loops back to the first book, we were talking about, Jackson’s book about Nuremberg. So this is a book about war crimes trials and what they can really usefully do, what’s the point of them, how can you bring law to apply to something as complicated and as morally difficult as war. And she’s in some ways very tough on international law. Her main concern is what kind of political result you can get from a war crimes trial. She wants these to be liberal political results, and she’s repulsed by the Moscow show trials. But her main justification for Nuremberg is that the charges of crimes against humanity can resonate to German thinkers, who are comfortable with the legal vocabulary that’s being used at Nuremberg. So the Nuremberg trials reinforce the pre-Nazi legal sensibility that was there in Germany, which the Nazis tried to destroy and that Shklar wants to resuscitate. But she’s also aware that what Jackson is really trying to prosecute at Nuremberg is aggressive war. Like Michael Walzer, Jackson thinks invading another country is the main international crime, and all other Nazi crimes flow from that aggression or were preparation for that aggression. Shklar disagrees with that. She thinks that you’re never going to be able to outlaw war, and given that obviously wars go on to this day, Shklar seems to be depressingly correct so far about that. War hasn’t been made illegal, even though aggression is what the American prosecution was really going after at Nuremberg. So this book is a very rich and nuanced look at how law and politics work together, or how they fight against each other. It’s a complicated and rich book. She is a great writer, so it’s not for academics only. It’s not as accessible a book as the other four. It’s theoretical and can get pretty dense. But it’s particularly interesting for people who are lawyers, because it’s a meditation about when law matters, and the possibilities and the limits of the law. And for people who are trained in law, that is something that is really interesting. When I teach this book to law students, they’re really drawn to it. Both the limitations and the successes. She thinks Nuremberg really got something done, it really did make a positive difference in the future political evolution of a liberal and democratic Germany. But some lawyers are uncomfortable with the political justifications for it. So depending on how a person thinks about the interaction of law and society, and the interaction of law and politics, some people would find it very challenging and subversive, that the two are so linked. Others would say, well of course that’s how it works. That’s why it’s challenging reading."