Settling Moral Accounts: Law, Politics and Morality

Montreal Political Theory Workshop

Settling Moral Accounts: Law, Politics and Morality

0930-1630 hours

Friday 5 December 2008

Room 16, Old Chancellor Day Hall
3644 Peel Street

McGill University

This workshop is funded by the Groupe de Recherche Interuniversitaire en Philosophie Politique (GRIPP), and co-hosted by the McGill Centre for Human Rights and Legal Pluralism.

Panel I: 0930 – 1230 hrs.

Settling Moral Accounts: Conceptual Issues

Chair: Jacob Levy (Political Science, McGill)

Farid Abdel-Nour (Political Science, San Diego State University), “Citizen Responsibility in Democratic States”

Abstract:

Citizens of democratic states are implicated morally when their state’s functionaries bring about bad outcomes on either the domestic or the global political stage. In such states, citizens have at least the right to vote in competitive elections and the right to intervene in public political debates that can potentially alter the available electoral options. At a minimum, elections usually result in the selection of legislators and other decision-making personnel who in turn, through the law or otherwise, are connected to political outcomes. For example, significant aspects of foreign as well as domestic policy are determined by the results of elections. Thus the role that citizens play in elections connects them morally to those political outcomes that are largely determined by the results. Faced with the right to vote, citizens can in most contexts choose whether to vote. And if they do they can choose among limited existing options of how to vote. In this paper I differentiate between three main burdens of political responsibility that citizens bear as a result of this minimal right. There is a burden they bear simply by virtue of participating in elections, no matter how they do so. For by participating, they implicitly agree to own the results, even if with their vote they opposed them. How citizens participate in elections involves another layer of responsibility. For example, those who with their vote further a particular result, bear an additional burden for bad outcomes associated with it. As to those who fail to participate they are not entirely off the hook. Depending on the specificity of the situation, they may end up bearing responsibility for failing to do their part to prevent a bad outcome. Citizenship in democratic societies, even in its most minimal form is a burdensome political role in which ordinary individuals are thrust. It involves a responsibility that they cannot shake off, and serves to make them complicit in the outcomes of state actions on the domestic as well a global political stage.

Gaëlle Fiasse (Philosophy and Religious Studies, McGill), “Should I Merely Excuse the Ignorant but Forgive the Wicked?”

Abstract:

In the debates on forgiveness, contemporary philosophers place too much emphasis on the distinction between forgiving and excusing. Furthermore, they do not make enough effort to explicate the notion of actions done out of ignorance. In this vein, Jankélévitch asserts that “we forgive the wicked but excuse the ignorant”. Derrida goes on to arrive at the paradox that the more an action is intentionally wicked, the more it calls for forgiveness. To counter both claims, I suggest looking at the question of forgiveness, both by 1) revisiting the degrees of evil in moral action within the Aristotelian framework of voluntary and involuntary action, and by 2) making a comparison between love and forgiveness. I show in which sense unintentional actions are not necessarily outside of the field of forgiveness, and why it is false to consider that the worst evil action calls more towards forgiveness than other kinds of wrongdoing. Such a view neglects the distinction between the agent and his action in the process of forgiveness, the role of regret, and the fact that ignorance of what is morally wrong can actually constitute an extreme form of wrongdoing. I thus revisit the “intellectualist” claim that puts too much emphasis on knowledge versus ignorance, while neglecting the role of passions, and, more importantly, the fact that reason itself can have a corrupt goal. Insisting on excusing the ignorant could lead to neglecting the responsibility of wrongdoers who ignore the fact that what they do is bad. Limiting forgiveness to intentional wrongdoing underestimates the many other actions and feelings that might call for forgiveness.

Catherine Lu (Political Science, McGill), “Accounting for Political Catastrophe”

Abstract:

What is involved in accounting for political catastrophes, including genocide, interstate and civil war, and oppression? One way to think about this question is to focus on the task of settling moral accounts through tribunals, truth commissions or other state-sponsored institutional mechanisms. Such moral accountings focus on the judgement of individual, institutional and social responsibility for political catastrophe. Yet, in contexts of political conflict that have culminated in catastrophe, the authority to judge and settle moral accounts is highly controversial. Typically, the question of authority to settle moral accounts is tied to the question of authority to punish. Judgements about responsibility and punishment, however, do not exhaust the task of accounting for political catastrophe. Recognizing a more pluralistic notion of moral accounting for political catastrophes, including other forms of public narrative and self-reflection, opens room for a pluralistic view of the agents who can engage in the task of accounting for political catastrophes. One implication of a pluralistic view of moral accountants and accountings is that contestations about authority to settle moral accounts are mitigated by an acknowledgement that any accounting for political catastrophe – including judicial judgements – are incomplete, subject to contestation and revision, and will likely remain unsettled. The quest to settle moral accounts once and for all may in fact turn out to be excessively authoritarian and ahistorical, undemocratic or inequitable, and morally as well as politically counterproductive.

Discussant:

Christiane Wilke (Law, Carleton)

Lunch Break 1230-1415 hrs.

Panel II: 1415 – 1630 hrs.

Responsibility for Crimes Against Humanity and International Law

Chair: Catherine Lu (Political Science, McGill)

Kirsten J. Fisher (Political Science, McGill), ‘Individual Responsibility in Collectively Committed Atrocity’

Abstract:
In its aim to answer the question, ‘for what can individual contributors to collectively committed atrocity be held criminally accountable?’, this paper suggests new categories of international charges. It briefly examines what individual responsibility for collective wrongs can mean. Then, in defining necessary distinctions between acts of international criminal behaviour, it recommends the need for new categories of charges. This paper argues that while leaders (planners, instigators, commanders) possess the greatest amount of criminal responsibility, the criminal actions of other perpetrators are both aggravated and mitigated by the fact that they contribute to the greater atrocity. Any reasonable conception of international crime must reflect that contributing actions (murder, rape, etc) of “lesser” offenders require their own distinct category of crime which signifies the mitigating and aggravating circumstances surrounding them. This paper also argues that although leaders must be held responsible for the actions they plan, set in motion and command, the generally accepted policy of command responsibility, by which leaders can be held legally responsible for genocide or crimes against humanity for the actions of their subordinates, risks unfair labeling.

Christiane Wilke (Law, Carleton University), ‘Between Civilization and Humanity:

Visions of Law and Community in the Nuremberg Trial of the Judges’

Abstract:

The 1947 Nuremberg Trial of Nazi Judges is one of the rare occasions in which judges sat in judgment on other (former) judges. Nazi judges and judicial administrators were accused and ultimately convicted of crimes against humanity and war crimes. Yet how did the Nuremberg Court arrive at its judgment? This paper analyzes the function of two overlapping markers in the judgment: “civilization” and “humanity”. The Nuremberg judgments, I argue, are based on the 19th century framework that conceived of international law as tied to a Eurocentric “standard of civilization”. The Nuremberg Court addresses the Nazi judges not simply as human beings but as member of the judiciary of a formerly “civilized” country that committed “barbarous” atrocities. In this imaginary, “law” and “civilization” are seen as mutually constitutive. The paper inquires into the consequences of this mode of thinking. For example, how does the Nuremberg Court construct the difference between its own mode of judgment and the practices of the accused Nazi judges? How does the Court justify the use of novel legal concepts such as “crimes against humanity”? And what is gained and lost in the Court’s insistence on describing Nazi state violence as “lawless” as opposed to organized through law and bureaucracy? These questions have implications for contemporary transitional justice scholarship that too often identifies the task of moving away from state repression with the “return” of the rule of law.

Discussant:

René Provost (Law, McGill)