Law and Irresponsibility

On the Legitimation of Human Suffering

Scott Veitch

• Publisher: Routledge-Cavendish
• Year: 2007
• Print ISBN: 9780415442503
• eBook ISBN: 9781134107551
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Moral Philosophy
• Index: Law

Law is widely assumed to provide contemporary society with its most important means of organizing responsibility. Across a broad range of areas of social life – from the activities of states and citizens, to work, business and private relationships – it is understood that legal regulation plays a crucial role in defining and limiting responsibilities. But Law and Irresponsibility pursues the opposite view: it explores how law organizes irresponsibility.

With a particular focus on large-scale harms – including extensive human rights violations, forms of colonialism, and environmental or nuclear devastation – this book analyzes the ways in which law legitimates human suffering by demonstrating how legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. Drawing on a series of case studies, it shows not only how law facilitates the dispersal and disavowal of responsibility, but how it does so in consistent and patterned ways.

Irresponsibility is organized, and its organization is traced here to the legal forms, and the social and political conditions, that sustain 'our' complicity in human suffering.

This innovative and interdisciplinary book provides a radical challenge to conventional thinking about law and legal institutions. It will be of considerable interest to those working in law, political and legal theory, sociology and moral philosophy.

Chapter 1

The disavowals of legality

The measure of human suffering

It is one of the defining characteristics of our time that humanly produced suffering vastly exceeds the ability or readiness to establish responsibility for it. Between the harms suffered—and especially in respect of suffering on a massive scale—and a finding of responsibility for it lie all sorts of diversionary mechanisms and tactics—in concepts and social practices—that work to make a connection between the two appear difficult, impossible or even nonsensical to establish. In all of this, the asymmetry between suffering and responsibility for its production has become entrenched, it has become routinised and so expected.

It is part of the analysis offered in this book to look into the nature of this asymmetry and to give consideration to the ways in which these diversionary practices operate. In particular, however (and this will be its key focus), it will evaluate the role of legal mechanisms—legal concepts and institutions— in normalising this asymmetry. The thesis here is that legal mechanisms operate as much to deflect responsibility for harms suffered as they do to instantiate it. It will suggest that, in many instances, legal mechanisms in fact play a key role in organising irresponsibility and that they do this as much as they determine responsibility. Indeed, part of the analysis will involve assessing how legal—but also influential moral and political—determinations of responsibility themselves play their part in assisting the proliferation of irresponsibility.

This interpretation goes against the grain of a widespread sensibility that understands law’s role to be one that is focally involved with organising the responsibilities of legal persons. Across the widespread reach of its doctrinal areas and in its fundamental principles of attribution, interpretation and legal reasoning, it is assumed that legal regulation provides perhaps the most prominent, or at least socially effective, way of instantiating norms of responsibility. No doubt this sensibility is understandable, particularly in the context of an increasingly juridified society, but it is far from the whole story. In fact, that this sensibility has become a commonplace refrain for lawyers, legal interpreters and social commentators alike, while the production of suffering continues apace, itself stands in need of some closer investigation.

But let us return for a moment to our opening asymmetry, because there is immediately another reading of it that comes to mind. Perhaps most obviously exemplified in the atrocities that marked out the twentieth century as the most violent in all human history, that reading is this: how could responsibility be measured against the extent of suffering caused by human actions that resulted in over 100 million deaths over the course of that century’s political programmes and conflicts? How could one begin to account for the suffering of large-scale violence in such a way that would make allocations of responsibility meaningful? What, in fact, could it mean to say that the millions and millions of deaths—usually, and increasingly, experienced by innocents and those already most vulnerable: women, the old and the young—could be made sense of and so be measured against a standard of responsibility? Is there not possibly something disturbing in the thought that there could be some symmetry here, some equivalence in thought or practice, that would provide the measure for understanding and responding to it?

The horrors of the twentieth century and the difficulty in attempting to understand them are marked symptomatically by the limits of language in comprehending the scale and nature of suffering. This limit is one with which we have become familiarised through phrases commonly found in that century’s literature: the ‘untold’ suffering; the ‘unspeakable’ truths; the ‘unimaginable’ horrors. These and many other similar expressions together bear witness to the failure of language and imagination to come to terms with the extensive experience of suffering. And that failure of language is replicated in the realm of normative response; it is, in fact, bound up with it. ‘Our moral discourse’ writes Carlos Nino (1996, p viii), ‘appears to reach its limit when dealing with deeds of this type.’

And this is partly what explains the sense of difficulty in establishing some measure or equivalence necessary to ‘do justice’ to these experiences and the limits they express. The asymmetry between suffering and responsibility for suffering finds its practical and institutional signification in the overwhelming fact that, again according to Nino’s observation (1996, p 3), ‘Silence and impunity have been the norm rather than the exception’. The sense of common measure—the sense of balance or proportion that underpins the Western tradition’s concept of justice and which, in turn, informs the terms on which attributions of responsibility are commonly justified—here seems hugely inadequate in the face of such violence and suffering. Somehow, trying to grapple with and give measure to the horrors seems to do them an injustice: what balances could be made that would be proportionate to ‘untold’ suffering? If such extensive violence seems to disrupt the categories of our understanding and hence of our available normative responses to them, it is perhaps not surprising that silence has been such a common response.

But silence is inadequate in its own way. Silence operates as one of the crucial ways of covering up suffering and responsibility for it as much as it does to bear witness to these. Silence can mean different things: where it means impunity, then it arguably constitutes a second injustice, one that consists of the refusal to listen and respond to—to try come to terms with—that which cannot be told. The difficulty or inability to instantiate a just measure that would go some way to coming to terms with the experience of suffering does not mean that impunity is appropriate: the fact that measuring is difficult does not mean that it should be eschewed.

Observing this difficulty perhaps helps to explain efforts to re-imagine and rearrange institutionalised responses to massive harms in practical ways. In other words, these abstract formulations about limits may go some way to explaining the rise of ‘quasi-legal’ institutions and, in particular, the truth and reconciliation commissions that have flourished at the turn of the century. Under sociological conditions in which there is, on the one hand, a recognition of the limits of justice as proportionality, and a confirmation of the inadequacy, selectiveness and hence potential arbitrariness of any standard legal institutional response, and on the other, a desire to invoke principles of universal human rights, then alternative means of coming to terms with massive human rights violations have been called upon to provide a ‘third way’ between justice and impunity (see Du Bois, 2001). In this scenario, calls for truth, reconciliation, apology, forgiveness and so on begin to proliferate. As Derrida (2001, p 33) argues in respect of forgiveness, when, in the twentieth century, ‘monstrous crimes . . . crimes at once cruel and massive, seem to escape, or because one has sought to make them escape, in their very excess, from the measure of any human justice, then well, the call to forgiveness finds itself (by the unforgivable itself!) reactivated, remotivated, accelerated ’.

But is there more to this ‘excess’ than mere immeasurability? Or to put it differently, might there not be other factors that underlie the treatment of these problems of immeasurability as an excess? Is there not a suspicion that we need to explore more fully just what might lurk behind the assertion that the asymmetry is one that pushes beyond the boundaries, beyond the reach of, standards of justice and responsibility?

I suggest that there is, and this is something that returns us to our central thesis, because perhaps one of the greatest difficulties in coming to terms with extensive suffering is that it was (and is) often the result not of illegalities— pace Derrida they were not simply crimes—but rather took place under the auspices of legal organisation. Legal institutions and legal reason were, in other words, often complicit in the commission of mass suffering. Writing of responses to the legacy of apartheid in South Africa, the problem here is one that Mamdani (2000) identifies as follows:

One needs to recall the question Hannah Arendt posed in relation to another crime against humanity, the Holocaust: What happens when the crime is legal, when criminals can enthusiastically enforce the law?

(Mamdami, 2000, p 60)

Here is the clue to what we need to pursue in more detail: the role of law and legal mechanisms in the production of suffering, and the role of legality in enforcing and legitimating this. When we appreciate this dimension, we see that the problem identified earlier as an excess and which we saw as tied to the problem of the immeasurable takes a different twist: the excess is not beyond law, but has its roots within law; what is deemed immeasurable has its roots within the measurable. The difficulty we identified a moment ago for normativity in responding (morally or legally) is traceable back to a form of legal normativity itself.

It is this fundamental problematic that I seek to explore. I suggest that not only is it a deeply troubling one, but it is one that, unless engaged with more fully, will continue to allow the delivery and proliferation of suffering that has gone on—and that goes on right now—in a legalised manner.

This may sound like an extravagant claim. Of course, we would not be surprised to think of barbarous policies as at the root of the problems of twentieth-century mass violence—but legality itself ? So let me be clear about what I will not be arguing. I will not be arguing that legality uniformly delivers, in a causal manner, massive harms. I will not be arguing that law and legal institutions are incapable of holding people and institutions responsible. Rather, I will be exploring the ways in which legality can and does allow the production of suffering, and what this requires and what it entails. I will analyse examples where those with good intentions knowingly promote and have enforced legal rules that they know actually do cause, or will likely cause, extensive and unnecessary suffering to individuals (including the deaths of hundreds of thousands of innocents)—examples that are not distant, but right here and now.

The situation of our task then is one that calls for a dual sensitivity to an awareness of the proper limits in the analysis, but at the same time to an ongoing acknowledgement of the uncomfortable facts with which we are—or will be in the coming pages—confronted and which engender, or ought to engender, a restless engagement with the reality of ongoing suffering. On the one hand, then, to place at the door of legal institutions and concepts responsibility for any, or all, large-scale humanly produced suffering would be to give a false account of the historical reality. To repeat, it would be inadequate to fail to acknowledge the capacity of law to hold to account, either in fact or potentially, actors involved in the production of suffering. But it would just as equally be mistaken to allow belief in that fact to exclude, whether categorically, negligently or by inclination, from judgment and analysis the reality that law does—in the past, present and, if things continue in the same way, the future—also play a central role in the profoundly irresponsible production and legitimation of human suffering. A sensitivity towards the truth of the former observation should not therefore be allowed to constitute an article of faith that would magically redeem that of the latter.

It might be thought, then, that there is a profound ambivalence—indeed, almost a schizophrenia—about how law’s capabilities are thought of and acted upon. At one extreme, let us imagine, there is a belief in the historical development of law as a progressive force for good, whether in promoting equality, fairness, welfare or whatever. At the other, there is—or ought to be—the realisation that the roots of modern law are planted firmly and inextricably in the ground of exploitation and imperialism (past or present). These roots have now developed to the point at which human, animal and plant life on the planet are jeopardised by a dominant way of life that is set in the context of legal norms according to which profoundly harmful activities take place, which are not illegal, but perfectly legal.

But the appropriate response to this perceived ambivalence is not to lose sight of either extremity: it is—and this is the more radical task of this book—to explore in nuanced ways precisely where and how the extremes meet. It is here that we must address how what might appear to be an excess can be, and often is, simultaneously rooted in the norm; we must examine why it is that certain acts are deemed by lawyers, politicians or moralists to be extreme—that is, not the norm—and so understood as a deviation from, rather than as a part of, the trajectory of modern law. In all of these variations, there are mechanisms at work in which legal and other means are deployed, more or less consciously, in enacting and legitimating disavowals and amnesias of responsibility, whether by dominant actors or interpreters. So our dual sensitivity should always remain in place and the notion of ambivalence explored productively, keeping in mind that any postulated schizophrenic characterisation should be thought of as RL Stevenson described his most famous character, Dr Jekyll and Mr Hyde: not as two different people, but as one and the same; to paraphrase Stevenson, even if it could rightly be said to be either, it was only because it was radically both.

Among the problems we must face up to, then, is that, not only does the asymmetry we identified register as an excess, but, on many occasions, it does not register at all. And so it will be necessary to inquire into why these examples I discuss so often do not present themselves as problems at all, as problems right here and right now. Prominent among the reasons for this is that the delivery of massive harms relies also on ordinary social processes— the division of labour, hierarchies, bureaucracies—within which legal institutions are set and on the capabilities of which they draw, the cumulative effect of which is often to splinter any coherent sense of congruity between acts and consequences. This is true both for institutions and prominent actors, but also in the—usually unarticulated—processes of defining what it means to be an actor, what it means to be acting and participating in the delivery of massive harms. As this takes us into some more familiar territory about the sociology of denial, it will also force us to think more clearly about the meaning of complicity. But again I will stress here the role of law in all of this, in a way that has often, it seems to me, to have been lacking in producing a more complete understanding.

So our key concern here is not with that which is illegal or criminal, but with that which is legal. It is with exposing and coming to terms with the fact that the cultural, conceptual and institutional crucible of legal organisation is able to carry out an alchemy that can turn mass tragedy into legitimate action, genocidal annihilation into the prerogative of sovereign right. So much more complicated and challenging it is, then, to see the task as coming to terms with the fact that the excesses are rooted in the normal.

That said, however, we should be wary of unexamined attributions of complexity. ‘Complexity’ shares its linguistic root with ‘complicity’ and in all of this we should not lose sight of the fact that, particularly from the point of view of the victims, the experience of suffering is not complex. ‘Complexity’ may make the asymmetry between suffering and responsibility for it easier to deal with for those who are not the victims, and so we should not shy away from considering law’s role in obfuscating the effects of power in the structures of social relations.

Yet perhaps all of this should not surprise us so much. With characteristic insight, Rousseau (1973, p 184) observed that ‘The strongest is never strong enough to be always the master, unless he transforms strength into right and obedience into duty’ and it is with this insight in mind that we should approach our enquiry. Writing of the ‘oppressive inequality’ that can accompany the division of labour in society, where ‘those who labour least get most’, Rousseau’s contemporary, Adam Smith, also understood this when he noted that what he called ‘this enormous defalcation’ is maintained ‘either by violence or by the more orderly oppression of law’ (Smith, 1978, pp 563–4). It is precisely this ‘more orderly’ form that stands in need of closer scrutiny, since the organisation of power in a legal manner relies on structural categories, modes of reasoning and institutions, part of the function of which is to provide a form of legitimation—internally and to the wider society—that presents itself as—that is, in fact—more than a straightforward exercise of strength.

‘It is daunting to acknowledge . . .’

This last observation is central to the thesis developed here. Later in this chapter, I will make some final preliminary observations about law and will consider further the question of irresponsibility. But I want, in this section, to introduce an example that gives a sense of the stark immediacy of the kind of problems with which the rest of the book engages and through which the general thesis developed here may be begun to be explored. I said, at the start, that my concern was with the ‘diversionary mechanisms and tactics’ that allow for the asymmetries between harms suffered and responsibility for them to occur, and that my focus would be on the role of law in this. The following situation raises a great number of issues, not all of which will be dealt with here. But it engages our analysis by showing how, in a situation in which devastating effects were carried out under the authority of law, we find that knowledge of and responsibility for such suffering, fed through the prism of social and legal institutions, gets refracted into ungatherable parts. In the next few pages, I record what, in this instance, the suffering was, how knowledge about it was being made public, and what role law and legal institutions played. Some detail is necessary to appreciate the scale of the suffering.

From the time of the Gulf War in 1991 until May 2003, two governments in particular—the United Kingdom and the United States of America— enthusiastically and rigorously imposed sanctions on Iraq. Their actions were legal. They were given authorisation by resolutions of the United Nations Security Council. Both governments had direct and continuing knowledge of the disastrous human effects that sanctions were having. In 2000, John Pilger reported the following:

In the [last] ten years . . . Iraq has continued to be the subject of sanctions that affect almost every aspect of life for the average Iraqi woman, man and child. With imports of food and medicine severely restricted, malnutrition and disease is now endemic in what was once one of the healthiest countries in the world. The latest UNICEF report says that more than half a million children have died as a direct result of sanctions. On average 200 Iraqi children are dying every day.

(Pilger, 2000)

He reported also that two successive co-ordinators of the UN humanitarian programme in Iraq and others, including from the World Health Organisation, had resigned because, as they had stated publicly, they would not willingly take part in the human disaster they saw sanctions causing. Yet, Pilger concluded:

US and UK politicians insist that the sanctions regime is necessary to contain the threat of Saddam Hussein. When asked on US television whether the death of 500,000 Iraqi children as a result of sanctions was justified [Secretary of State] Madelaine Albright replied: ‘I think this is a very hard choice, but the price, we think the price is worth it.’

(Pilger, 2000)

The sanctions were applied to a country that US and UK-led forces had just bombed to a massive extent in response to the Iraqi state’s invasion of Kuwait. The first UN observer (Martii Ahtisaari, UN Under Secretary for Administration and Management) reported on 20 March 1991 as follows:

You asked me to travel, as a matter of urgency, to Iraq. It should be said at once that nothing we had seen or read had quite prepared us for this particular form of devastation which has now befallen the country . . . Most means of modern...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Introduction
• Chapter 1 The disavowals of legality
• Chapter 2 Social structures and the dispersal of responsibilities
• Chapter 3 The laws of irresponsibility
• Chapter 4 Complicity in organised irresponsibility
• Bibliography