Guyora Binder

Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie

Noting the enormous media interest in the war crimes trial of Klaus Barbie, and the surprising emphasis of this coverage on its cultural significance, this essay provides a literary reading of the trial as a contest over identity. More specifically, it treats the trial and its coverage as a struggle among competing groups - including the French state, various strands of the French left, the French right, resistance veterans, holocaust survivors, Zionists, Arabs, anti-colonialists - for the power to represent Nazism. All of these groups sought to define Nazism so as to claim a privileged identity as essential victims or opponents. Drawing on over 2000 media accounts, the essay explores how the historical background of the case caused it to assume such significance, how both international and french legal doctrine made the ideological content of Nazism particularly salient, and how French criminal procedure privileged these different interests as parties to the case and so brought them into public conflict with one another. The essay also reviews the theological conflicts within Judaism and the philosophical and ideological conflicts within the French left that were dramatized at the trial and in its media coverage. Finally, the essay treats the widespread urge to identify causes and communities in opposition to Nazism as a culturally prevalent trope, reflecting to a common crisis of faith and survivor guilt in the face of atrocity. The essay critiques this trope, however, as enabling groups to claim a fictitious coherence and conviction by ascribing an enviable and equally fictitious coherence and conviction to an enemy. The essay concludes by urging readers to resist the temptation to consume the Holocaust as an object of moral edification.

Aesthetic Judgment and Legal Justification

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law’s representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, to legal justification.

Treaty conflict and political contradiction : the dialectic of duplicity

Treaty Conflict and the Camp David Negotiations A Brief History of Treaty Conflict The Paradox of Treaty Conflict Treaties as Property Entitlements The Deconstructon of a Property Rule State Autonomy: The Case Against a Property Rule The Nationalist Dilemma: Liability Rule or Laissez- Faire? Natonalism and Internationalism The Return

Post-Totalitarian Politics

This review essay examines two Hegelian responses to the unexpected collapse of communism, both published in 1992: The End of History by Francis Fukuyama and Civil Society and Political Theory by Jean Cohen and Andrew Arato. Fukuyama’s book famously predicted that the triumph of markets would lead to the end of armed conflict. Cohen & Arato celebrated the role of civil society activists in overthrowing communism, and proposed that first world progressives follow a similar path to reform. This review essay argues that Fukuyama’s interpretation of Hegel as a cold war liberal ignores Hegel’s warnings about the anomic and antisocial effects of unfettered markets unless softened by publicly subsidized empoyment, and civil society organizations. Fukuyama further ignores Hegel’s pessimistic argument that social welfare and civil association impair the allocative efficiency of markets, driving states into economic and military conflict. By contrast, Cohen & Arato recognize the deficit of recognition Hegel attributed to markets and the importance of civil society in filling it. Yet they also fail to acknowledge the extent of Hegel’s pessimism about the capacity of civil society alone to make up the deficit. According to Hegel, there is no substitute for meaningful work as a source of recognition, but providing everyone with meaningful work yields crises of over-production. The essay concludes by warning that the problem may survive the transiton from an industrial to a service academy, and that we may already be experiencing a crisis of over-production in the area of human capital.

Penal reform and progressive ideology.

In Conscience and Convenience, David Rothman examined the development of a series of Progressive era responses to social deviance: probation, parole, the juvenile court, the therapeutic mental hospital, and outpatient mental health care. Although animated by a new sense that deviance was best corrected through individualized treatment aimed at acclimating the deviant to society rather than isolating him therefrom, these reforms were undone by the indifference, lethargy and venality of those charged with implementing them. This review essay critiques the book’s disappointingly thin account of the reformers’ ideas, which leaves the reader uncertain as to what it is distinctively “Progressive” about their reforms.

What is Criminal Law

In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally, we argue that the high stakes of criminal law and its contingency on democratic politics make criminal law teaching as much a matter of civic education as of technical education.