Judith Shklar über die Philosophie des Völkerstrafrechts

Abstract

Judith Shklar’s “negative” politics made her a vigilant critic of other modes of liberalism. In what she called her “favorite” book, Legalism (1964), Shklar took up legal philosophy, and it remains one of the most neglected corners of her oeuvre. And yet it is highly relevant today, because she took as her test case for legal philosophy the inter¬national political trials that took place after World War II at Nuremberg and Tokyo. This essay reconstructs her narrow and instrumentalist theory of law, which led her to be a profound critic of Hans Kelsen’s positivism but also of its traditional rival, which has now taken the form of a jurisprudence of moral principle (and which Shklar ultimately associated with Ronald Dworkin). The contemporary pertinence of her thought lies perhaps most of all in the realist strictures that it places upon internalist accounts of law (whether positivist or normative) and especially in the much-debated current return to international justice, in the form of the International Criminal Court and related institutions. Her remarks on Nuremberg show why her negative politics deserve a place of honor in current debates about international justice.