Shanks-Dumont on The Aesthetics is International Criminal Law

Daimeon Shanks-Dumont, University of California, Berkeley, is publishing The Aesthetics is International Criminal Law in volume 37 of the Temple International and Comparative Law Journal. Here is the abstract.

Randle DeFalco’s provocative book, Invisible Atrocities, argues that aesthetic perceptions condition what is considered an international crime through the deployment of a social constructivist model of norm development. However, DeFalco forecloses the more radical implications of his work by positing that aesthetic considerations remain anterior to international criminal law’s (ICL) identity; that is, the ontological status of law is understood by reference to Lon Fuller’s analytical essentialism, which insists that for law to be “law” it must conform to eight formal criteria of legality — significant deviation from these parameters and law is no longer “law,” but rather “some other, nonlegal form of rulemaking or social ordering.” The critical potential of Invisible Atrocities is frustrated because to flatten and de-historicize something like ICL (or any legal regime, for that matter), as Fuller does with his eight criteria, is to reify law as an ideal type that contradicts the hermeneutic approach to norm creation implied by the social constructivism model utilized in the rest of the book. This friendly critique of Defalco’s conceptualization of law’s identity follows the work of Pierre Schlag to argue that aesthetics are not merely an influence on law, but rather are constituted as law. This hermeneutic understanding of law as a historically-situated, contingent, and inter-subjective process of meaning creation opens a whole field of totalizing ICL critique, not least of which would be an unmasking of the ideological functions that aesthetics play in determining what (and more importantly, who) are subject to ICL’s attentions. Simply put, if aesthetic considerations are something outside of law, then legal relations that are determined in and through aesthetics may be concealed, but if aesthetics is law, no such closure is possible. Unmasking law’s aesthetic identity forces the issue. In asking why law’s aesthetic identity is used to include/exclude, define/underdetermine, proscribe/condone, or otherwise determine social reality (cui bono?), many other questions — such as the ontological status of “law” as an abstract analytical concept — drop away as rationally insoluble or otherwise uninteresting.

Download the article from SSRN at the link.