Chapter 2 introduces and configures the concept of lawfare. This framework chapter sets the theoretical scene for what is to come. Whereas both legalism and lawfare, in the books conception, serve the standard functions of regulation in a given polity, the author demonstrates that only lawfare is intended qua system to also serve a function otherwise considered the hallmark of warfare. The chapter elaborates defining attributes of – and pathways to – lawfare. It also situates the books theoretical argument about lawfare in existing work on the rule of violence.

The chapter examines everyday citizenship among youth respondents from the angle of their relationship to the state or as citizenship-from-above. Youth respondents initially defined citizenship in terms of legal obligations to the state. Afrobarometer findings that indicate high levels of support for obeying the law and paying taxes echo those responses, though respondents provide nuance to the Afrobarometer data. Legalistic views of citizenship are closely connected to the building and maintenance of strong relations at the local level and, for some, notions of morality. Few youth defined citizenship primarily in terms of voting, though Afrobarometer findings indicate large percentages do participate in elections. Even fewer youth respondents described citizenship as engagement in activities such as joining with others to advocate or protesting to hold governments accountable, a finding that aligns with the survey data. For these few youth, it is their everyday relationships with friends and neighbors and communal experiences of marginalization that motivate actions. Protest examples from South Africa and Uganda show that citizenship-from-above and citizenship-from-below blur and that everyday citizenship manifests in creative and agentic ways.

Rules are a ubiquitous normative form across the human experience. The recent anthropology of ethics and morality has, however, tended to focus elsewhere, in part to redress a perceived earlier over-emphasis on rules within anthropology. Bourdieu’s scepticism as to the value of structuralist talk of rules, and favouring instead of ‘practice’, has been more widely influential. This chapter makes the case for a renewed and more sophisticated attention to rules within the anthropology of ethics. While the roots of anthropological rule scepticism lie in debates – often inspired by Wittgenstein – over whether the implicit norms of ‘ordinary’ social life should be thought of as ‘rules’, the prominence of explicit rules in many of the world’s great ethical traditions seems hard to ignore. And yet, the conceptual tools available to anthropologists for their nuanced ethnographic appreciation remain under-developed. Some potential resources from analytic and legal philosophy and moral theology are brought to bear on examples from the author’s research on the use of religious rules, specifically those of the Islamic sharia. Having demonstrated the diversity, complexity, and ethnographic interest of the practice of moral rules, the chapter ends by considering why some social contexts appear more ‘ruly’, or legalistic, than others.

Chapter 1 situates Responsibility on Trial within the existing interdisciplinary literature on international criminal justice and presents the research aims of the book. Chapter 1 highlights a gap in the existing literature: international criminal law norms are generally treated either as objective and static standards that are independent from states’ political interests (the ‘liberal-legalist’ thesis), or, conversely, as inevitably indeterminate concepts that enable the perpetuation of global structural inequalities (the ‘critical’ thesis). While both perspectives provide important insights into the operation of international criminal justice, they fail to examine the dynamic nature of legal norms as vehicles for both continuity and change in the field and the implications of those dynamics for the assessment of individual criminal responsibility for mass atrocities. To address this gap, Chapter 1 borrows insights from the work of Shklar and Kirchheimer and proposes building an ‘intersubjective’ framework of analysis that recognizes law’s inherent normativity not as an objective fact but as a form of social practice.

Chapter 10 discusses the main findings of this book concerning the politics of international criminal law practice and explores the question whether the norms and practices associated with the assessment of individual criminal responsibility are likely to continue changing in the future. This chapter presents a pluralist understanding of ‘legalism’, as a concept that entertains a range of different visions of international criminal justice. Next, this chapter highlights the importance of understanding the normative dynamics taking place inside the international criminal justice field, namely the battle of different visions of legalism over the construction of criminal responsibility rules, for analysing trial outcomes at the Court. Finally, Chapter 10 observes that it is possible that the restrained approach to criminal responsibility, displayed at the Bemba Appeals Chamber Majority and the Gbagbo and Blé Goudé Trial Chamber Majority, can create a backlash within the international criminal justice community, even if that backlash does not end up prompting reform at the ICC in the short term.

This chapter explores the place of compromise in transitional justice. While all-pervasive in politics, compromise is a neglected topic, almost a non-topic, within the current transitional justice literature. The chapter is an attempt to reverse this tendency and rehabilitate the notion of compromise. If, as pluralists hold, we are often faced with cases of hard moral choices where, whatever we do, something of value is irreparably lost, then the best we can hope for is some kind of acceptable compromise between clashing goods. The question about the limits of compromise thus features centrally in this chapter. How far should transitional societies go in their willingness to compromise? When is a compromise acceptable, fair, guided by principle, and when is it rotten to the core, simply illegitimate? To what extent is it acceptable to compromise deeply held values such as justice and truth for the sake of other equally important values such as, say, civil peace and democracy? While doubtful that we can settle such issues once and for all, the chapter identifies a range of questions that should be part of the collective conversation about when a political compromise is acceptable and when it is not. The discussion begins, however, with a concrete historical figure, the communist leader Joe Slovo, who played a critical role in South Africa’s negotiated transition from apartheid to democracy. Slovo’s reflections on the nature and limits of compromise in the South African context serve as a central reference point for my discussion throughout this chapter.

Chapter 4 embarks on Part II of the book, the first of four empirical chapters analyzing implementation in northern India. It examines primary education in Uttar Pradesh (UP), a state that exemplifies the dynamic of legalistic bureaucracy theorized in Chapter 2. Rural UP is among the least likely setting. First, I trace the historical origins and persistence of legalistic bureaucracy in UP from the colonial era onward, but focusing on the recent period of lower caste mobilization and multiparty competition. Next, I present evidence from multilevel comparative fieldwork demonstrating how legalistic bureaucracy drives implementation over a range of administrative tasks, including school infrastructure and enrollments and provision of the Midday Meal program. I then bring the analysis down to the village-level. Taking a citizen-centric view of the state, I trace the evolution of village collective action around primary schooling over time, demonstrating how bureaucratic norms interact with citizen oversight.

Chapter 7 explores how the legal cultures in East Asia relate to criminal cartel sanctions. For context, the chapter retraces the incorporation of Confucian ethics in the criminal codes of ancient China. This exercise indicates the possibility of stigmatizing cartels on the moral ground that they constitute improper profit-making contrary to the principle of righteousness. The chapter submits that debates concerning the morality of and prohibition of cartels in East Asia are properly informed by an understanding of Confucian norms—including not only those that allow an actor to achieve virtue internally but also those associated with one’s status and the maintenance of harmonious social order externally. It is submitted that condemning cartel conduct and characterizing it as morally wrongful requires a conception that goes beyond individualist assumptions and calculations. In East Asia, the likely effectiveness of criminal sanctions targeting cartel behaviour can be enhanced if the moral wrongfulness of such behaviour is properly defined, and if its immoral character becomes widely recognized and internalized.

National and international lawyers are ubiquitous in transitional political negotiations. However, their role in advancing or stalling negotiations, or in advocating or resisting progressive change, is generally carried out behind closed doors. This chapter explores when and how lawyers living and working within repressive, conflicted, and transitional states influence the content of transitional political agreements. It draws on twenty-five interviews with lawyers who participated directly in negotiations and other informed commentators in our case study sites. Combining this empirical data with literature on lawyers as negotiators, the sociology of the legal profession, and critical international legal theory, the chapter explores the factors that shape relationships between lawyers and the political leadership in negotiations. The chapter further critically analyses the extent to which lawyers’ negotiating styles and legal skills can advance or inhibit the reaching of an agreement. The final section explores the discretion and capacity of lawyer-negotiators for legal imagination in crafting transitional futures. We find that lawyer-negotiations often have to grapple with reconciling their role as legal technicians with the ethical and political challenges of advising on law’s content at times when the law itself is indeterminate or subject to negotiation.

By mixing conceptual clarification and semantic probes, we seek to underscore the problematic nature of characterizing law as a universal concept. We intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. First, we examine works dealing with “legal pluralism” and “legalism” to identify the reasons why the term “law,” its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a “legalistic way of thinking” about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with “Islamic law” and law in Muslim contexts to try to see what law can be at the margin but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar.

Two High Court chief justices may be considered candidates for the title of 'Australia’s Towering Justice’: Sir Owen Dixon and Sir Anthony Mason. Dixon’s claim to the title lies in his articulation of a formalistic doctrinal methodology – ‘Dixonian legalism’ – which held firm for decades. Mason’s claim lies in his unshackling of the Court from legalism, and his reconceptualising of the Court’s role within the Australian system of government. This heralded a form of realism that led to the development of doctrines, some first propounded by Dixon himself, that would progress individual liberties and democratic participation in a constitutional system lacking comprehensive rights protections. This chapter claims that Mason’s legacy is the most important today. His Court’s methodological realism and explicit acknowledgement of values and policy in judicial decision-making, and the doctrinal development that gave the Australian ‘people’ constitutional status and protections, all continue to shape modern constitutional law and debates over the judicial role and method. It is against Mason and the jurisprudence of his Court that modern legalists must now define – and defend – themselves.

This introductory chapter frames the overall book, arguing that the ICC’s principle of complementarity has become a transnational site and adaptive strategy for realizing domestic accountability, as well as an array of other governance goals. It argues that complementarity came to be framed as a ‘catalyst for compliance’ through a particular, duty-based reading of the Rome Statute. This reflects the broader dominance of legalism in transitional justice, which insists on the centrality of criminal law in the aftermath of mass atrocity. The first part of the book addresses the evolution, interpretation and implementation of complementarity by state and non-state actors, as well as Court actors (specifically, ICC judges and the Office of the Prosecutor) in The Hague. The second part is empirical: It illustrates the effects of this interpretation and the interaction of the ICC with the normative and institutional accountability frameworks in Uganda, Kenya and the Democratic Republic of Congo. Three aspects are explored in particular: the passage of Rome Statute implementation legislation; the establishment of specialised domestic courts as part of the institutional architecture for prosecuting grave crimes; and the initiation of actual, criminal proceedings that have ensued in the wake of ICC action.

This final, concluding chapter summarizes the book’s key findings and concludes that the ICC’s interventions and complementarity are better understood as axes around which advocacy for a global accountability norm has turned. Rather than a catalyst in itself, it is the court’s mediated relationship with non-state actors that has had the greatest ‘catalytic effect’ on domestic accountability efforts. In this sense, civil society organizations are both object and subject of this effect: They seek to expand complementarity’s normative influence, while having themselves been transformed by it. The chapter also offers a number of recommendations for future inquiry and practice: It urges a critical rethinking of the ICC’s politics, greater use of the Rome Statute’s cooperation and dialogue regimes (rather than admissibility) as an approach to encouraging domestic accountability, greater experimentalism, and a reorientation towards international criminal justice as a project of global legal pluralism.

This chapter addresses complementarity’s policy dimensions as engaged by the Office of the Prosecutor (OTP) and queries how the office has sought to influence state behaviour through two key areas of its work: preliminary examinations and investigations. Drawing on complementarity’s dual properties as both coercive and cooperative, the chapter first examines the OTP’s use of preliminary examinations as a tool to prod national jurisdictions into action. The chapter then offers a detailed review of the Kenyan preliminary examination, wherein the office, under Prosecutor Moreno-Ocampo’s tenure, took a largely coercive approach as it sought to push the government to establish a national accountability mechanism in the wake of its post-election violence. (By contrast, the office has elsewhere pursued a more cooperative, managerial approach to complementarity.) The chapter then considers the office’s early investigatory practices, focusing on Uganda and the DRC in particular. It argues that, particularly in cases of ‘self-referred’ states, investigations could have been a material site for a more positive, cooperative approach to complementarity. This has been to the detriment of the OTP’s relationship with national-level actors, but also, arguably, to its disappointing record of confirmed charges and convictions, which itself imperils the court’s catalytic potential.

Chapter 3 revisits explanations for contradictory US policy via the ideological typology to develop a model of competing conceptions of the international rule of law. Opposition to US legal policy has converged on forms of ‘legalism’, as a set of beliefs that law consists of non-instrumental rules and that the international legal system should be developed by analogy with municipal law. The four ideal types, as well as legalism, are applied to reinterpret the classic Anglo-American conception of the rule of law composed of three elements that, when translated to the global level, are concerned with: how to develop non-arbitrary global governance; how to define equality under IL defined; and how to determine the integrity of international judicial power. Each element of the rule of law has been interpreted in a distinctive form by the competing ideologies, thus establishing a structured contest over principles for designing and developing global legal institutions. The meaning of ‘coherence’ becomes that a legal policymaker’s interpretation of any one of the three elements is a reliable indicator of positions taken on remaining elements.

This chapter studies the fortune of historical knowledge under the rise of the Qin empire from the mid-fourth century to the end of the third century BCE. It begins with a discussion of the founding of the Qin empire, and how the infamous episode of the “Burning of the Books” points to its desire to exercise dominion not just over the space but also the time of the empire. Then, it turns to a discussion of the ambivalent, problematic role that history had long played in the Legalist tradition of political thought, as seen in writings by various prominent Qin officials, especially Shang Yang and Han Feizi. Then, under the Qin empire and the First Emperor, we saw not only an inheritance and forceful application of this Legalist vision of the state, but also a willful radicalization of its key principles. The Qin empire built on the Legalist legacy and finally arrived at a vision of itself as the effective “end of history,” a supposed cessation of all material change in human history henceforth that also worked as an effective dismissal of the entire historical field as ultimatley useless and irrelevant.