Paradoxes of Universalism

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Paradoxes of Universalism

November 4-6, 2020

Organized by

The Centre of Excellence in Law, Identity and the European Narratives (EuroStorie)

University of Helsinki

Paolo Amorosa (Helsinki): A World Safe for Catholicism. Interwar International Law and the Many Faces of Neo-Scholastic Universalism

This contribution outlines the legal concept of universalism as developed by a group of members of the Association Internationale Vitoria-Suarez in the interwar years. International lawyers such as James Brown Scott, Louis Le Fur, Yves de la Brière and Alfred Verdross seized on the larger Neo-Scholastic trend ongoing within Catholic culture to rethink the foundations of the international legal order. Inspired by the thought of Thomas Aquinas and, especially, his early modern Salamancan followers, they sought to move beyond positivism and States as the only subjects and source of international norms. They argued that a universal morality, founded on the concepts of person and international community, was the only solid basis for just and effective global legal relations. While the contribution of Catholics to the establishment of the post-war world order and the rise of human rights discourse is widely acknowledged, the interwar genealogy of these developments is not. This paper recounts how Neo-Scholastic international lawyers navigated the complex political landscape of the 1920s and 30s, combining nationalism, universalism and religious belief in

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shifting equilibria. Participating in the contemporary re-engagement of Catholics with modern politics, they re-imagined the international legal order in Catholic terms. Reading their universalist legal tenets in conjuction with their political trajectories provides crucial frame to better understand the moral charge that would characterize international law in the early Cold War.

Joshua Bishay (Paris Nanterre): ‘Solemnly Declare to Tell the Truth’: Internationalising the Solemn Undertaking before the ICC

This paper explores the courtroom procedures of the ICC as a cultural expression. Looking at the Rule 66(1) of the ICC Rules of Procedure and Evidence which requires witness testimony be preceded with a solemn undertaking (the ICC’s term for an oath) where the witness promises to tell the truth under penalty of law, the paper challenges the ICC’s attempt at utilizing a universal procedure in the face of culturally plural courtroom actors. The central hypothesis is that because oaths, and similar rituals, are an integral part of cultural expression, the ICC should be mindful of how affected communities perceive courtroom procedure, and their roles in it. Additionally, it traces the origin of the ICC’s solemn declaration to Western traditions. The paper looks to several case studies from an anthropological lens, in particular the Cambodian oath as it is used in their national system and the Extraordinary Chambers in the Courts of Cambodia, demonstrating that oath ceremonies are expressions of worldviews, history and cultural norms. Additionally, the paper takes a critical look at the historical usage of oaths before international criminal tribunals, and tracks its evolution over time, concluding that a ‘one-size-fits-all’ approach may be insufficient for an oath to be meaningful for affected communities.

Mårten Björk (Oxford) and Tormod Otter Johansen (Gothenburg): End of Law

The research project "End of law" will conduct an interdisciplinary study of the secularisation of the Christian eschatological idea of an end or telos of law. The development of modern thought shows that the idea that law could end has not only been central to important strands of Christian theology. This apocalyptic view of law as something finite has also become secularized in modern political visions, such as anarchist, conservative, Marxist, and neoliberal thought, through the hope for an end or radical limitation of law.

Yet, the question of the end of law is a curious blind spot in legal and theological thought; a sort of taboo functioning as a repressed other to jurisprudence and religion. By inquiring into the secularization of the end of law, our project probes the historical development of the idea of the end of law and what it implies. There are at least three different sides: end as goal (telos), what the law seeks to achieve; end as finitude and limit, which finite community or state the law belongs to; and the eclipse or conclusion of law, for how long it will last.

The project will address the lack of discussions of the end of law in religious studies, legal scholarship and political theology. The aim is to dissolve the blind spots of jurisprudence and theology by articulating tacit assumptions. This will be done through a structured interdisciplinary conversation between legal and

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religious studies, resulting in scholarly texts co-authored by scholars from both fields.

Rodrigo Cespedes (Max Planck Institute – Halle): Indigenous People, Cultural Defenses and International Treaties: Between Universalism and Moral Relativism, a Perspective from the Global South

This paper deals with indigenous rights and its evolution experimented after the ratification of the ILO-Convention 169 (1989) by several Latin American countries. One of the most important changes is that indigenous communities and individuals have been recognized as right-holders of international rights. That idea has triggered a legal revolution: natives have used international provisions in legal proceedings. That is still considered a challenge to traditional legal thought. Latin American courts have dealt with human sacrifice, witchcraft, indigenous-popular administration of justice, statutory rape, domestic violence, etc. The ILO-169 has been particularly important for correcting the injustice they have suffered through history. The ILO-169 recognizes natives as protected minorities and grant vast importance to aboriginal custom as a source of law. Indigenous custom has been considered as an essential element in criminal cases that have involved sexual crimes, violent disputes for land or possession of ritual drugs. The ILO-169 considers indigenous custom as a source of law, especially as a way to mitigate criminal liability or, in some cases, full (cultural) criminal defense. In several cases, courts have to balance basic legal principles from international human rights law and the autonomy granted by treaties to indigenous peoples. Basically, the legal disputes are decided considering universalism and a sort of relativism. That is particularly relevant since several new Latin American constitutions (such as the Bolivian one) acknowledge legal pluralism as one of the most important bedrocks and reject Colonial paradigms based on European conceptions. That phenomenon can be seen as an abandonment of universalism.

Because in those cases indigenous custom is crucial, a multidisciplinary approach is essential in order to adjudicate with fairness. With the purpose of achieving that, the presence of anthropologists or ethnographers as expert witnesses has been fundamental. The ILO 169 been applied in recent case-law, and the accused had claim “cultural defenses” or “culturally motivated crimes”, sometimes successfully. The ILO-169 has played an important role in developing and enriching domestic law.

Ville Erkkilä (Helsinki): The Problem of Universalizing Concepts in Post-War Conceptual History

In this article, I will scrutinize Reinhart Koselleck’s work from the perspective of German legal historiography. It is generally known, but often forgot, that Koselleck was a lawyer by training. He was cultivated in the long tradition of German jurisprudence, worked with notable legal scientist, addressed some of his work to the legal scientific community, and drew inspiration from many German legal theorists. I utilize previously unused material from Koselleck’s personal archives, and show how Koselleck constructed some of his early classics – especially his work on the concept of “Revolution” – on jurisprudential

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principles and addressed questions that intrigued the contemporary community of legal scientist. It is commonly acknowledged that the ideas of Carl Schmitt, Hans-Georg Gadamer and Joachim Ritter had a decisive influence on Koselleck’s thinking, but I attempt to elaborate that Koselleck’s involvement in the jurisprudential community and his relation to the legal scientific discourses went beyond a mere acquaintance. Rather than eclectically adopting some ideas from well-known legal scientists, Koselleck saw his work on ‘Revolution’ as a contribution to the wider discussion on the nature of social justice and truthful interpretation of social norms. Via contextualizing Koselleck’s work to the development of and problematic prevailing in German jurisprudence during the 20th century, it is possible to comment on the field of Begriffsgeschichte in general. I argue, that such view is especially fruitful in considering the dilemmas of the universality of concepts and the relation that concepts have on social history.

Elisabetta Fiocchi Malaspina (Zürich): Universalising Colonial Law Principles (Late 19th and Early 20th Century)

In 1894 the Institut Colonial International was founded in Brussels, with the aim to engage and promote transnational exchanges between jurists, scholars, politicians, colonial administrators and experts, comparing different colonial experiences. In its annual or biannual meetings, the Institut Colonial International produced and edited a considerable number of research papers, studies and proceedings (the so-called comptes-rendus), which represented a fruitful source for various colonial (law) topics. As the Institut’s founders had hoped, their publications promoted legal debates, discussions and the prospects of specific legislation, decrees or norms to be adapted and used in completely different colonial systems.

Examples of this “borrowing” and cross-pollination were the application in African territories of concepts as property, land law as well as the different (European) land registrations systems. The paper will show that the Institut Colonial International encouraged the exchange of ideas about the various colonial experiences in order to create common and universal principles. International law and domestic law, or national law concerning land register systems and land law were part of the colonial discourse as it endeavoured to create and adopt universal principles of law, trying to establish a platform of common dialogue, with common premises, concerning different colonies, different colonial experiences and ultimately different cultural, social and political contexts.

Julie Fraser (Utrecht): Towards ‘Universal’ Criminal Law: Islamic Law and the ICC

International law is yet to live up to its name. Despite its intended universal application, critiques of international law have revealed its biases, including its European proclivities. TWAIL scholars have elucidated how international law replicates and perpetuates colonial relationships of dominance and subordination even in contemporary times. Breaking with the colonial past is therefore an ongoing and time-consuming undertaking that involves examining

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and dismantling structures of imperialist thinking. While some posit that due to its European bias, the entire system of international law is illegitimate, others aim to improve rather than abandon the system. This is done on the basis of principle as well as pragmatism, for international law now plays such a vital role in regulating public life. In an attempt to contribute to the improvement of international law, this paper outlines some of the main TWAIL critiques of international criminal law before proposing a manner in which to make it more genuinely universal. Focusing on the ICC and its case law to date, this paper uses the example of Islamic law to practically illustrate de-centering Western thought in international criminal law.

Jacob Giltaij (Amsterdam): Refugee Scholarship and the Universality of Legal Concepts

Often, a more or less universal quality is attributed to certain legal concepts. For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar constitution and the German Rechtsstaat under Nazi rule, which demonstrated the fragility of a constitutional and legal order. The more universal the concept, the less prone it turned out to be enforceable legally, for example in the context of international law or by those seeking legal redress while being stateless, without citizenship or otherwise denied access to legal claims established on a national level. Moreover, the breakdown of the German Rechtsstaat was felt on a deeper conceptual level. The “immutable” legal concepts turned out to be mutated easily to conform to Nazi ideology. The second major challenge to the universality of concepts thus pertains to the universal characteristics of the “concept of a concept” itself. In brief, what German refugee legal scholars attempted to create in the course of the 1930s and 1940s was a “universal” Rechtsstaat centered around concepts and legal scholarship that would avoid the breakdown by placing it into as feasible and balanced system of legal enforcement on an international level. Thus, in their new academic context, rather than dismissing the Rechtsstaatliche function of legal concepts and the role of legal scholars, refugee ventured to enhance it. The contribution argues that the development of the concept of human rights by Hersch Lauterpacht constitutes such an enhancement.

Ayten Gündoğdu (Columbia): Border Deaths and the Crisis of Human Rights

Borders have become increasingly lethal with the adoption of ever more restrictionist policies and technologies of immigration control. Taking its starting point from the regime of impunity surrounding migrant deaths, this paper offers a critique of existing juridico-political frameworks, including universal human rights norms, that render migrants precarious in life and in death. I mobilize the term “forced disappearances” to capture how various border control practices push migrants beyond the pale of the law, make it difficult for their families and friends to locate their whereabouts, and render their lives disposable. To the extent that domestic and international laws offer various justifications of these practices in the name of territorial sovereignty, they actively participate in making migrants invisible, or “dead,” in the eyes of the law. A form of civil death

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precedes migrants’ physical deaths, in other words, and it can help explain why the latter remain unaccounted for, legally and politically.

Özgür Emrah Gürel (Dokuz Eylül University): Three Europe, Three Modernities: Rival Accounts of Democratic Republicanism in Habermas, Taylor and Negri

This paper will critically discuss the notion of modern democratic republicanism in the political and historical investigations of Jürgen Habermas, Charles Taylor and Antonio Negri. The idea of modern democratic republicanism is fully connected with the historical evaluation of modernity and more specifically the modern European reason. This paper will argue that to understand the different paradigms of modern republicanism in Habermas, Taylor and Negri calls for a detailed examination of their expositions of the modern European universality. We will call these rival investigations respectively as the Kantian, Hegelian and Spinozist readings of European modernity. By clarifying the differences and similarities among these alternative interpretations, we can also re-think the conceptual schema of modern republicanism and re-interpret the important notion of democratic republicanism such as political power, communicative freedom and public sphere.

This work proposes two interpretive axes to evaluate the accounts of modern republicanism; namely the immanent and transcendental dimensions. The first model that we will investigate is Habermas’s Kantian-Weberian understanding of modernity, aiming to synthesize the immanent and transcendental origins of the European reasoning. Habermas’s political philosophy pinpoints the Weberian allocation of the modernity and its ethical amelioration with the Kantian notion of procedural reasoning. Habermas’s neo-Weberian interpretation of modernity; namely the technical, ethical and aesthetic differentiations of modern European reason, has a direct impact on his understanding politics. By mainly focusing on, The Theory of Communicative Action (1981), The Philosophical Discourse of Modernity (1985) and Between Facts and Norms (1992), this paper aims to discuss the philosophical roots of Habermas’s democratic republicanism as Verfassungspatriotismus. We will call the Habermasian project as a fragile adjustment of immanent and transcendental versions of the European reasoning, and question why Habermas cannot fully affirm the ontology of immanence. The second model is Charles Taylor’s hermeneutical reading of European modernity that mainly relies on the philosophical projects of Herder and Hegel. By re-reading Taylor’s two major historical narratives, namely Sources of The Self (1989) and A Secular Age (2007), this paper wants to question why Taylor’s democratic republicanism paves a way for a transcendental notion of self and political community. In this regard, we will question why the Taylorian expressive freedom requires a metaphysical re-reading of Hegel’s theory of modernity. We call the Taylorian modernity as quasi-metaphysical search for “provincializing Europe.” Finally this paper aims to investigate Negri’s reading of European modernity as “the revolutionary plane of immanence.” By particularly focusing on his four major philosophical works, carried out jointly with Michael Hardt, we will claim that there is a new possibility of thinking the European modernity as a philosophy of immanence and materialism. Negri’s Spinozist Marxism, fully developed in the works of Empire (2000), Multitude (2004), Commonwealth (2009) and finally Assembly

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(2017), portrays new ways of political reasoning that paves the way for an alternative account of power, freedom and community.

In conclusion, this paper aims to critically compare three rival constellations of modern European universalism in Habermas, Taylor and Negri. By hermeneutically studying these three models, this paper will emphasize why the historically immanent critique of reason becomes substantially important for understanding the crisis of modernity and developing new forms of democratic republicanisms. The immanent critique of European rationality offers us a hermeneutic genealogy of universal forms as well as the materialization of the economic systems that can allow a more systematic understanding of modern bio-politics and public-spheres, which are the substantial aspects of modern republicanism. As a result, searching new ways of democratic political community requires firstly a historical examination of the European modernity and secondly a critique of all forms of transcendental aspirations of universal reasoning.

Firat M. Haciametoglu (Leuven): Is it possible to historicise universalism? The inclusivity and the concept of the lifeworld

Historian Arif Dirlik claimed that “the distinguishing feature of Eurocentrism is not its exclusiveness, which is common to all ethnocentrisms, but rather the reverse: its inclusiveness.” The ultimate aim of this paper is to engage critically with this “inclusiveness” as the contemporary form of universalism. The central hypothesis of this paper is that this “process of inclusivity” shall be understood in relation to a new philosophical paradigm that Edmund Husserl effected at the turn of the twentieth century, which, according to Elias Palti, was overlooked by Michel Foucault. According to this new paradigm, we can talk about the world we live in as something which (i) is in some sense experientially given; (ii) displays structures that can be described at a level of generality that is not culturally specific but acknowledges necessary cultural and historical dimensions; (iii) precedes classical dichotomies, such as subjective-objective, natural-cultural, etc.; and (iv) is of a dynamic nature that constantly transforms itself. The culmination of this new paradigm is the concept of the lifeworld [Lebenswelt], which can be conceived of as a factor and an indicator of “globalization” as a peculiar, “inclusive” process that remains the same by generating difference. Universalism, as I will claim, is a stand-in concept for the performance of this self-differentiating dynamic. On this account, in order to understand the paradox of universalism, we shall first embark on a philosophical and historical research that adresss questions of how and why the concept of the lifeworld emerged in a period of unprecedented ascendency of Europe’s global power (by 1900, ninety per cent of the inhabitable globe was partitioned by Europe). This task is equivalent to the question of whether or not it is possible to historicise the concept of the lifeworld. Demonstrating that the level of generality and the almost universal appeal of this concept seem to resist all efforts to think of it as historically contingent, I will turn to limit phenomena that obstruct this ferocious inclusivity, enabling the possibility of historicisation. In effect, I will expose the “inevitability” (i.e. a socio-historical modality of felt necessity) of an “outright abandonment of universalism” as part of a particular spatio-temporal order heir to the reorganisation of the world into the archipelago of self-enclosed nation-states conjured up by global modernity.

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Tommi Hjelt (Turku): Ambivalence of Disruption. Temporal and Spatial Aspects of the Notion of Discontinuity in German Literature in the Interwar Period

My presentation sets out to examine experiences and representations of discontinuity in German literature of the interwar period. I’ll be drawing from a variety of literary examples, including writings of Erich Kästner, Kurt Tucholsky, Walter Benjamin, Hermann Broch, and Robert Musil, in order to give a multifaceted account of the different and many times ambivalent roles that were assigned to the notion of discontinuity. The inherent ambivalence is probably most manifest in interpretations of the present as a radical historical discontinuity, which leaves feelings of disorientation and uncertainty in its wake, but at the same time gives rise to a sense of liberation, of breaking free from the false security of the past. In this respect, the experience of disruption can be seen opening up a productive time peculiarly disconnected from the past, aiming at coming to terms with new realities of the present. On the other hand, the idea of time as a directed process is subjected to the same critical scrutiny as other certainties of the past, which leads to suspicion towards literature’s own narrative foundations. This is one of the reasons, why some writers of the era aren’t content to simply depict experiences of disruptions, but actively deploy the category as a strategy, that undermines narrative continuity.

By outlining some key motifs of German interwar literature in terms of discontinuity and disruption I approach the question of universalism from a “negativistic” point of view, which hopefully gives some new insight into the underlying challenges of a universalist attitude in general. For example, the disruption of epistemological and habitual certainties of everyday life in the turmoil of the early 20th century constitutes a prerequisite for the newly found interest in universalist undertakings. One would assume, then, that the category of disruption ultimately serves its purpose as something to be overcome by means of a more up-to-date, a more integrative, perhaps even a more universal narrative. But as I wish to show, in the mental landscape of the interwar period the category of disruption has a vastly more complex role than that. In some cases, disruption, break and discontinuity are, in fact, the very means of thinking and expressing universalist concepts.

Ari-Elmeri Hyvönen (Jyväskylä): Universal Science, Universal Responsibility, and the Earth: Lessons from The Mid-Twentieth Century to the Age of the Anthropocene

This paper addresses the emergence and trajectory of ‘universal science’ from the viewpoint of twentieth century thought, especially the political theory of Hannah Arendt. Following Arendt, I use the expression ‘universal science’ to designate a form of natural science that looks at earthly nature from an ‘extra-terrestrial’ Archimedean point of view. This type of scientific practice obviously emerged during the European modernity. My intention in this paper, however, is not to ‘provincialize’ universal science, but to ponder upon its political significance from another angle, namely the modern “fateful repudiation” of Earth and “the human condition as it has been given”. Because it not only represents all phenomena as parts of infinite universal processes but also channels these processes into the human world and earthly nature, the

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emergence of universal science coincides with the discovery of human ability to “destroy all organic life on earth”. From the mid-twentieth century perspective, the obvious reference of this destructive capacity was the atom bomb. Today, I argue, these reflections can help us think through the political implications of human-induced environmental havoc, the Anthropocene. The notion of the Anthropocene relates to the problem of universal science from many perspectives. First, like the capability for destruction that worried the thinkers in the mid-twentieth century, the Anthropocene, too, is a result of directing ‘stellar’, universal processes into earthly nature, usually mediated by the human world, i.e. industrial production (although this stretches the concepts a bit, I will argue that carbons can be treated as universal in this sense, given the unprecedented energy reserve their harnessing released). Second, we only know about the Anthropocene because of ‘universal sciences’ and particularly sciences that are capable of looking at the Earth as if from the outside, as a single system. Based on these conceptualizations the paper will address two issues in particular. First, the meaning of universal responsibility (combined with unevenly distributed guilt) evoked by the notion of the Anthropocene; second, the ways in which the results of the universal sciences must be brought back ‘down’ to the level of particular life-worlds in order to have a political impact. Do we have to reinvent ‘expertise’ in public discussion in order to conjure up concrete, particular policies informed by universal science and universal responsibility?

Rope Kojonen (Helsinki): Universalism in the Recent Science and Religion Discussion

The idea that religious belief has some explanatory capacity, and that some truths about God can be known based on reason, finds support in parts of the Christian tradition. The first Vatican council (1869-1870) even affirmed that “if anyone says that the one true God, our Creator and Lord, cannot be known through that which is created, by the natural light of human reason, let him be anathema.” (Turner 2004) However, the postmodern suspicion of universal reason has also been welcomed by many defenders of religious beliefs, who have seen Enlightenment-era foundationalistic defenses and critiques of religious rationality as a fundamental misunderstanding of what religious beliefs are about. And the existence of so much religious disagreement also seems, to many, to make it clear that religious views must allow for a non-universal rationality. (Abraham & Aquino ed. 2017)

In this paper, I will analyse the discussion in the interesting test case of science-religion discussion. This discussion shows an interesting way to balance between the demands of universality, held by the natural sciences and traditional theology, as well as subjective faith and the importance of particular historical communities and traditions, which also transmit certain views of rationality. As I will argue, this discussion shows an interest on the part of both theologians and scientists to claim universal truth, but also to negotiate between different standards of what counts as rational in different contexts. (McGrath 2019).

For instance, much energy is used to criticize an idea termed “scientism”, according to which the sciences form our best or only way of understanding the world and its history. On a scientistic understanding, any philosophical or religious metaphysical worldview is bound to be just “sophistry and illusion”, to

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use Hume’s famous phrase. In the discussion, scientism is criticized on both philosophical and religious grounds, and by proponents of different worldviews; in my paper I focus on religious criticisms and what they reveal about the understanding of rationality. (De Ridder, Peels & van Woudenberg, ed. 2018) The rejection of scientism implies that religious belief in God does not necessarily need to be supported by scientific arguments in order to be rational. After all, if scientism is rejected, it could be that there are many rational non-scientific reasons for beliefs. Yet as I will show, if there were no religious need to make truth claims and seek (more) universal recognition, then the rejection of scientism would not be needed for religious reasons. A noncognitivist understanding of religious belief would, after all, be fully compatible with at least an epistemological scientism.

Bibliography

Abraham, William & Aquino, Frederick D. Ed. The Oxford Handbook of the Epistemology of Theology. Oxford: Oxford University Press, 2017.

De Ridder, Jeroen, Peels, Rik & van Woudenberg, René, eds. Scientism: Prospects and Problems. Oxford: Oxford University Press, 2018.

McGrath, Alister. The Territories of Human Reason: Science and Theology in an Age of Multiple Rationalities. Oxford: Oxford University Press, 2019.

Konstantinos Kostas (Helsinki): Hannah Arendt on Rethinking Work in the Time of Industrial Automation

Hannah Arendt had a particularly critical stance on labour, and she certainly is not the most conspicuous theorist of work. Moreover, some scholars even claim that she altogether denies the significance of work even on a theoretical level. This paper aims to put Arendt’s notion of work on a larger historical perspective. Through a spatial analysis on her notion of work, I argue that Arendt’s endeavour with her theory of action was to rethink the traditional narratives of work in the 20th century. This is plausible by taking into account her optimistic, but cautious, views on technology and automation, and reflections on totalitarianism and “the unnatural growth of the natural” in modern society. Arendt underlined that humans are in danger of becoming dispensable if the value of work is maintained solely in traditional terms, namely, those of production and capital. Arendt suggested in various ways, especially in The Human Condition, the importance of a stable institutional world in which humans could be protected from forces such as mass society and instrumental governance.

My argument is twofold. Firstly, Arendt was not simply neglecting the role of work in political action, on the contrary, she attempted to rethink the purpose of work by prioritizing work as activity over work as capital . Arendt criticized those narratives that considered the purpose of working was to consume or to gain private pleasure. Instead, she emphasized that the activity of work should converge with the public sphere without succumbing into annihilating individuality. For Arendt, work as activity can act as an universal condition for political rights especially in the time of increasing industrial automation, although with some spatial conditions.

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Secondly, when reading Arendt’s theory of action through a spatial dimension, it opens up a perspective on work that contends the traditional narratives of work. The spatial analysis on conditions of worldliness and materiality can be demonstrated through Arendt’s metaphor of the table, which acts as an analogy in Arendt’s thought. The table is a technology and an instrument for a stable institutional world, and which also binds Arendt’s universal notions of plurality and natality with materiality and instrumentality against the traditional narrative of work, which, in Arendt’s view, isolates people into world alienation.

Brianne McGonigle Leyh (Utrecht): ‘We will let it die on its own’: Culture and Power at Play between the US and the ICC

The deep-seated cultural phenomenon of US exceptionalism is especially evident when it comes to shielding the US from oversight concerning serious human rights violations. The reality of US political and legal culture, grounded on exceptionalism and power politics steeped in nationalism, is nothing new. However, the relationship between the US and the ICC in light of the recent developments taking shape under the Trump administration are calling out for attention. Using theories of culture and power, I explore what the deteriorating interactions mean for the Court and its goals of being a universal court. I examine how the Court’s initial decision declining authorization of an investigation into the situation in Afghanistan - reversed on appeal - presented a concrete example of the ideology of US exceptionalism being deployed to maintain a system of power. Their turbulent relationship has highlighted the tenuous position of the Court, showing that it too can succumb to power dynamics orchestrated by powerful state actors.

Nikhil Narayan (Queens University Belfast): Asia’s Reluctance to Join the ICC: Who is Jilted by Whom?

Only 19 of the 123 States Parties to the Rome Statute are from the Asia-Pacific region. Asia-Pacific consists of 54 States, representing the largest and most populous region, including the two most populous countries and three nuclear powers. Asia is also a continent rife with impunity for atrocities committed in armed conflict. Yet, with a few exceptions, the region is conspicuous in its absence from the ICC. The reasons given for this absence are rooted in cultural relativist arguments challenging the universality of international human rights and criminal justice norms and their applicability to Asian values that are the cornerstone of Asia’s suspicion of international human rights and justice institutions generally. This paper examines the roots of Asia’s wariness towards the ICC and the challenges to the universality of international law justifying this wariness. The paper ultimately evaluates the implications of Asia’s absence on both the Court’s legitimacy as a universal norm-setting institution, and on the entrenchment of universal justice norms in Asia.

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Stefan Nygard (Helsinki) and Johan Strang (Helsinki): Universalism and Imperialism in the Geopolitics of Intellectual History

In this paper, we discuss why some intellectual cultures are more prone to universalize their experiences than others are. Provocatively put, whereas it is possible for a group of scholars from leading universities in (old and new) England to publish a book called Global intellectual history, this would almost be embarrassing for scholars from marginal European cultures like the Nordics or the Balkans, let alone for scholars from the Global South.

Intellectuals from peripheral cultures tend to be crucially aware of cultural and linguistic differences, to put much effort in fashioning their own particular adaptations and definitions of key concepts, and to use political key concepts in a relativizing manner. Intellectuals from the centres, by contrast, can afford to more self-confidently engage in what they perceive as the main struggle to define a concept with universal validity. This is not merely a matter of blind ethnocentrism; it is also a question of logics and values formed through practice and routine. In certain intellectual spaces, the particular simply stands a greater chance of being universalized, which in turn corresponds to a reduced need to adjust to alternative ways of thinking. Elsewhere, there is instead a more pronounced tendency to think of universalisms in the plural.

The idea that some milieus are more prone to universalism than others is both controversial and a very complex issue. While the international status and recognition of a specific intellectual field is an obvious factor, it does not fully account for the significant differences in the use of a universalizing language even in “dominant” cultures in post-Napoleonic Europe such as France, Germany and England. A thorough examination of this issue would require a consideration of a broad range of socio-historical factors. Building on our previous research on the topic (Decentering European Intellectual Space, Brill 2018), this paper focuses on the self-understanding of the historical actors themselves. By discussing how a number of Nordic intellectuals in the nineteenth and twentieth centuries managed marginality and how they conceptualized and used the particularism-universalism dichotomy, the purpose of the paper is to stimulate discussion on the role of the peripheries in transnational intellectual spaces, with specific attention to the language of universalism. Finally, we want to revisit the question whether the recent post-colonial trend in intellectual history is a welcome de-universalization of western thought, or a more subtle form for imperialism where the west is writing “their” history for them.

Kevin Olson (California – Irvine): The Politics of the Universal: Universalism in the Diaspora of European Ideas

This presentation tries to displace universalism from the intellectual and cultural registers in which it is usually understood. I argue that it should be thought of instead as an inherently political ideal. To make this argument, I turn to universalism’s genealogy during its golden age in the late Enlightenment. My history focuses on that great exemplar of universalist ideals, the Rights of Man. I trace the history of this idea through various drafts of the Declaration of the Rights of Man and Citizen, Thomas Paine’s Rights of Man, feminist appropriations by Mary Wollstonecraft and Olympe de Gouges, writings of the French abolitionist group the Société des Amis des Noirs, and works of Toussaint

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Louverture and other Haitian revolutionaries. I examine the way the idea was deployed in the service of both democratic revolution and the movement to abolish slavery. Here universalism and colonialism collide in explosive and unexpected ways. The relations and tensions between them reveal the dynamic political force of universal ideals, while also showing that political valence is inherent in the very project of universalism itself.

Imranali Panjwani (Anglia Ruskin): Developing our Imperfect Reason to Understand Islamic Universals: Ibn Rushd’s Rationalist Approach to Scripture and Human Existence

Whilst there is acknowledgement that Ibn Rushd (Averroes) has contributed to Western intellectual thought, there is still a distinct lack of acceptance and understanding amongst Western scholars as to the degree and nature of his contribution. For example, Thomas Aquinas whose work still forms the basis of philosophical doctrine of the Catholic Church tried to disentangle Aristotelian philosophy from Muslim philosophy and attempted to add in his system elements direct from Plato. However, his methods show clear Muslim influences. For example, his interplay between faith and reason appears to have been copied from Ibn Rushd and his attitude to the Bible is that of Ibn Rushd’s attitude to Quran. Both believe God’s word was supreme authority but could be explained in Aristotelian philosophical terms. Ultimately, Aquinas concluded that science was not incompatible with religion – the same conclusion reached by Ibn Rushd.

My paper seeks to elucidate Ibn Rushd’s approach in understanding human existence within the Islamic universals of God and the Qur’an. The apparent paradox is the acceptance of the reality of God and scripture but only through the imperfect vehicle of reason. He argues God is the Maker (al-Saani’) of all things and we are amongst the existent things (mawjudat) made by God. In order to know God, we should know about existent things and the way they are made by Him. This can only be done through human reflection but since philosophy is nothing more than reflection then we must have a complete understanding of this discipline and the way human reason functions so that we can obtain a fuller understanding of God.

Ibn Rushd’s argument has far reaching implications today. The techno-scientific approach to reason that claims universality appears to divorce itself from scripture and non-rational sources of knowledge. Ibn Rushd’s arguments could help bridge this divide and be a resource for law, history, philosophy and other arts and humanities subjects which generally suffer from a Eurocentric and colonialist approach to knowledge.

Rose Parfitt (Kent Law School): Self-Fulfilling Ontologies: Nazi Eagles in the Rainforest

Harboured by horseshoe bats and ushered into the human cell-structure via pangolins (apparently), the rapid success of SARS-CoV-2 in establishing itself as part of the organic universe has been astonishing – at least from the perspective of human beings (the virus’s new favourite ‘host’).

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The timing of this biological coup d’état, in the middle of the ‘sixth mass extinction’, is hardly a coincidence, as even the most mainstream voices in world politics, science, economics and public health are now recognising. To quote Elizabeth Mrema, director of the UN Biodiversity Convention, on the grim findings of the 2020 Global Biodiversity Outlook Report: ‘As nature degrades, new opportunities emerge for the spread…of devastating diseases like this year’s coronavirus… [T]he more humanity exploits nature in unsustainable ways…the more we undermine our own well-being, security and prosperity’.

And yet as the Linnean hierarchy implicit in this warning suggests – no less than the desperation of immunologists confronted, in their breakneck search for a ‘coronavaccine’, by a global shortage of lab monkeys – the response to this crisis does nothing to challenge the fantasy of ‘universal reason’. On the contrary, that response manifests a startlingly reinvigorated anthropocentrism.

This is not, of course, the first time the Judeo-Christian conflation of ‘humanity’, rationality and universality has been challenged by the recalcitrant inconsistent complexity of the organic world. These challenges have been consistent – even over the course of the century that has passed since the founding of the League of Nations, when the formally uniform cosmos we now inhabit, comprised of states and citizens, first dawned on the horizon as a real possibility.

This talk will revisit some of the many attempts that have been made, in response to the continual challenges posed by ‘nature’, to escape the shortcomings of ‘universal reason’ by reimagining the relationship between human and non-human life. From the ongoing efforts to endow endangered species and even ecosystems with legal personality, to the horrors unleashed by the Nazis’ reordered taxonomy (as embellished by today’s ‘ecofascists’), in which eagles soared above worms and ‘subhuman races’ alike, these experiments have consistently reinforced what I will describe as a self-fulfilling ontology to which ‘universal reason’ has given birth.

Asking what drives this ontology forward, and what remains outside it, will also – I hope – make it possible to think in more political terms about what a ‘successful’ response to the current crisis might look like.

Marianne Sandelin (Helsinki): The Conservative Origins of the 20th Century Notions on the Relationship between the Enlightenment and Totalitarianism

In Dialectic of Enlightenment (1947), Max Horkheimer and Theodor Adorno stated that despite aiming at liberating human beings and their reason from restrictions and authorities, the Enlightenment had on the contrary led to unparalleled oppression, totalitarian regimes and the mass destruction brought about by the 20th century Fascism. Their contemporary, Isaiah Berlin, however, took the opposite direction and traced the roots of both the right-wing as well as the left-wing totalitarianism of the 20th century to what he portrayed as the antithesis of the Enlightenment, the Counter-Enlightenment. One of its fiercest ambassadors, Joseph de Maistre (1753-1821), Berlin labelled as a proto-Fascist, which still remains the most influential picture of the Savoyard conservative thinker.

In recent studies, however, this picture has been widely questioned and criticized and Maistre has even been said to have anticipated the critiques of the

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Enlightenment presented by the Frankfurt School and the postmodernists in the 20th century. In this paper, I shall examine this further and show that long before the atrocities of the World Wars, instead of advocating for what became known as totalitarianism, Maistre on the contrary warned against the “totalitarian” and oppressive nature of the universalism dearly embraced by the Enlightenment. He wished to prove that regardless of the beautiful ideals emphasizing endless progress, universal idea of humanity, human liberation, equality and equal natural rights, the Enlightenment had on the contrary led to a much bigger evil than what is had aimed to abolish. Although Maistre has often been portrayed as a fierce enemy of reason, he did not abandon reason completely, but rather attacked the idea of the universal reason of the philosophes. He saw it as an arrogant, hypocritical and dangerous Pharisee that had an elitist tendency of generalizing its own privileged viewpoint as the highest and objective form of ideal human condition, while trying to knock out all alternative experiences and outlooks.

Insofar as also the modern conservatives often accuse the Enlightenment-rooted liberals – both on the Right as well as on the Left – of a similar kind of hypocrisy and intolerance towards those, who do not share its liberal values, I believe that by looking at Maistre’s frantic critique of the Enlightenment and its universalism, we might find a more nuanced understanding of the so-called crisis of liberalism and the reasons leading to the current triumph of illiberal political movements aspiring to harness the masses against the liberal ideals of the Enlightenment.

Juan Pablo Scarfi (San Andres): Universalizing Regionalism or Regionalizing Universalism from the Americas? Alejandro Álvarez, the Twenty Years Crisis and the Reconstruction of the International (Human Rights) Law of the Future

The aftermath of WWI created the conditions for a significant revision of the fundamental tenets of European universalism and especially Eurocentric conceptions of international law. The “twenty years crisis” created the scope for envisioning alternative spatial conceptions of world order, decentering European hegemony in the name of new ideas of peace and human rights. This generated a wave of creative reinterpretations of universalism in different fields, ranging from the arts, philosophy, politics and law, as well as an inclination to reimagine world order from alternative continents, for instance the Americas. Writing from Paris, Chilean jurist Alejandro Alvarez was convinced that European conceptions of international law needed to be, if not discarded, at least significantly renovated in the aftermath of WWI and thus the international law of the future could be renovated from the Americas as a new model to international society.

This paper focuses on the international legal thought of Alvarez and his understanding of limits of European international law as an archaic tradition of the past. He believed that the continental American tradition of international law, as a synthesis of the Latin American and US legal traditions, offered the most advanced international legal tradition for the reconstruction of international society following WWI and WWII. In the context of the emergence of the American Institute of International Law and the twenty years crisis, Alvarez published two important works about the international law of the future (Le

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droit international de l'avenir) (1916) and the reconstruction of the rights of the peoples (La reconstrucción del derecho de gentes) (1944), putting forward ideas and projects for the codification of international law and the rights of the human person. The paper argues that Alvarez inherited and envisioned his proposed universal conception of human rights and the promotion of peace from an American continental legal tradition, one that he himself conceived as a unified “Hegelian” synthesis of the US and Latin American traditions. As an American continentalist and revisionist European universalist, Alvarez sought to universalize American regionalism in order to reconstruct (and regionalize) European universalism, in a “Hegelian” attempt to offer a synthesis between the Americas and Europe.

Ukri Soirila (Helsinki): The Rise, Fall and Afterlife of the Law of Humanity Project

One of the characteristics features of the history of international law in the twentieth century was a struggle between two competing visions of the global (legal) order: one based on the consent of and relations between states, and the other on ’universal’ values of humanity and the person. Although the former dominated legal practice for much of the century, there always ran also a parallel undercurrent seeking to emphasize the role of the individual, as reflected not only in the emergence of international human rights law and international investment law, but also in writings on traditional core issues of international law, such as international legal personality. Nevertheless, it was not until towards the end of the century that this undercurrent had become part of the mainstream. By the 1990s, however, a new vision of international – or rather global – law had emerged. Although the vision has taken many different forms, all instances of it have been uniform in the attempt of radically altering how we understand international law by seeking to posit the human as the primary subject of the international legal order and universal values of humanity as its main source of legitimacy. Together, these instances form what this paper calls “the law of humanity project”.

The paper analyses the law of humanity project: its rise in the twentieth century; its potential fall as a consequence of the populist backlash; and its afterlife in the changes it has produced both in the ways of thinking about the global order and in the distribution of power, expertise and resources. In particular, the paper is interested in the shared underlying assumptions of the project and the ways in which its key theorists position themselves against relativism, communitarianism and visions that they deem as “nationalist”, but also against forms of universalism that they see as producing damaging forms of globalization. Indeed, different versions of the project ranging from top-down establishment of a new global law to reciprocal humanization through cross-cultural dialogue, and cultivation of ‘fear-solidarity’ at the face of global threats. While sympathetic towards some of the aims of the project, the paper takes a critical stance towards the ways in which the project has inadvertently contributed to the disciplining of the state and consequently to the rising global inequality which may have paradoxically lead to the project’s own demise.

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Sophie Starrenburg (Leiden): Reconciling the Universal and the Particular in the International Legal Protection of the Cultural Heritage

The idea that cultural heritage is a common interest of humankind has prevailed over the course of the past century, across the waxing and waning of political investment in the international legal project. Since the conclusion of the Second World War, the act of international legal protection of cultural heritage has been reliant upon the principle that certain forms of heritage have the power to transcend the barriers of time and space; to demonstrate their universal value beyond their original particular context. Treaties such as the 1954 Hague Convention and the 1972 World Heritage Convention thus generally posit that any damage to this ‘universal’ heritage causes ‘damage to the cultural heritage of mankind’.

However, while the intentions of cultural heritage treaties are certainly universal in design, this paper seeks to demonstrate that their development and implementation is often overwhelmingly national. These treaties generally do not challenge the problematic practices of states in relation to the heritage situated within their borders; to the contrary, heritage practice is rife with examples in which the constitution of ‘universal’ heritage of the international community is achieved at the expense of individuals and local communities. Inclusion of a heritage site on lists such as the World Heritage List can thus sometimes entail the geographical distancing of previous residents from the site through displacement, eviction or gentrification. As such, cultural heritage law embodies the careful balancing act between the idea of a universal humanity—and corresponding hopes about the possibility of international order—and the particularity implied by the notion of an intrinsically valuable cultural diversity.

Ultimately, the construction of the concept of cultural heritage cannot be achieved without reference to its particularity as well as its universalism: the value of heritage derives from it being specific to a particular time, place, or people, thereby demonstrating the diversity of human flourishing. Contemporary cultural heritage law thus leans too heavily on its universalist

impulses, without recognising the potential productive relationship between these particularities and the notion of a universal heritage. This paper accordingly argues in favour of a particularistic legal universalism through which these differences can be reconciled. In doing so, it seeks to look beyond the limitations of cultural heritage law in its current incarnation by

charting how cultural universalism can be reframed to function as a language of resistance for individuals and local heritage communities against the state.

Jayne Svenungsson (Lund): Radical Incarnation: The Dangers and Promises of Christian Universalism

In his 1997 pamphlet Saint Paul: The Foundation of Universalism, Alain Badiou pointed to the unintentional symbiosis between neoliberal capitalism and a proliferating identity politics. As a bulwark against these tendencies, he proposed a new creative interpretation of Christian universalism, which gave significant impulses to the political-philosophical debate in the subsequent years. In my lecture, I will revisit Badiou’s proposal for a new universalism and also discuss some of its lacunas. More specifically, I will ponder whether these

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lacunas may help to explain why the radical left-wing universalism of the 2000s never really took off but rather was replaced with radicalized identitarian movements on the political left as well as the political right. Finally, I will reflect on whether such a thing as Christian universalism is possible, let alone desirable, in the fragmented and polarized times we are living in.

Julius Telivuo (Jyväskylä): Open and Closed Universalism

This paper proposes a novel distinction between open and closed universalism as political approaches. It aims at showcasing the plurality of universalisms, rather than embracing or rejecting universalism as a unified whole. The distinction between openness and closedness is proposed as the main dividing line of universalism.

Closed universalism imposes a general, unified and homogeneous order onto diverse communities and phenomena within them. By contrast, open universalism adopts the heterogeneous perspective of a larger system, in the extreme case comprising the entire globe. Indeed, all universalisms arguably have the whole world in view, but the open and closed approaches relate differently to the idea of a whole. Closed universalism is marked by the will to extend an a priori principle across a system, while open universalism takes the concrete, heterogeneous whole as its starting point. For instance, peacemaking does not essentially consist in applying general principles or human rights in a particular conflict, but in evaluating the concrete situation as a whole and trying to find an optimal solution which the parties can live with.

The paper has its background in Henri Bergson’s idea of open and closed morality. Furthermore, I discuss the analyses of Gilles Deleuze and Félix Guattari, who have examined the ramifications of open and closed types of political stance and social organisation. Deleuze and Guattari also compellingly demonstrate how capitalism operates as if between these two extremes: it breaks down restricting old barriers and habits, but it also erects its new system of economico-political axioms. Indeed, I argue that capitalism and liberalism are both borderline cases of closed universalism: they are undeniably global and non-territorial enterprises, but the order they impose is based precisely on this general, homogenised ideal of the world. Thus, I also depart from Karl Popper’s analysis of the open and closed society, which simply equates closedness with totalitarianism and openness with liberalism. Another interesting case of borderline closed universalism analysed in the paper is the theoretical movement of militant universalism of the likes of Badiou and Žižek, who make a virtue of violent partisanism in the name of absolute democracy and equality. By contrast, open universalism consists in transforming a situation from within its heterogeneous tensions.

The distinction between open and closed universalism enables us to arrive at a more subtle understanding of universalism as different forms of commitment. The paper provides conceptual means of identifying different universalist tendencies and noticing the universalist tensions and interests involved in particular situations.

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Kaius Tuori (Helsinki): Linking Intellectual History and Conceptual History through the Concept of Universality and the Universality of Concepts

A commentary and an attempt at a synthesis on the basis of the previous papers.

Olli-Pekka Vainio (Helsinki): Universal Reason and Tradition according to Alasdair MacIntyre

This paper examines the development of tradition-dependent rationality in the thought of the moral philosopher Alasdair MacIntyre spanning from his early After Virtue (1981) to his recent Ethics in the Conflict of Modernity (2017). Interestingly, his theory of rationality has been criticised in ways that render the criticisms themselves irreconcilable. For example, some accuse him of being a relativist; some say he is an authoritarian; while some claim that his system is self-contradictory. I will summarise the main criticisms and construe responses that might be given from MacIntyre’s late Thomistic perspective to the universality of knowledge, which also takes seriously the limits of human reasoning. I will also assess the relevance of MacIntyre’s thought for contemporary moral philosophy and religious reasoning.