08 December 2020

Truth, Shame and International Law

The attitude of the Trump administration or of Putin’s Russia towards facts is often said to be emblematic of our post-truth condition. In a recent contribution to ESIL Reflections, Fuad Zarbiyev, Associate Professor of International Law at the Graduate Institute, argues that the problem is not so much the truthfulness of political leaders as the rising culture of post-shame and reflects on its consequences for international law . 

In this piece, you touch upon the phenomenon of post-truth and its (misleading) underlying assumption that there was an age of pre-post-truth. In doing so, you present a novel perspective on our current age, which, following Alastair Campbell, you describe as the Age of Post-Shame. Could you briefly define this notion?

The idea of epochality is often problematical, premised as it is on the assumption that there could be radical differences among blocks of time, with each having stable characteristics – something that is rarely encountered in practice. The concept of post-truth is a good example, since it overlooks the fact that politics and truth-telling have always had a complex relationship, an issue that Hannah Arendt and Alexandre Koyré discussed in seminal works. But it is difficult to deny that there seems to be something new in the attitude of an increasing number of political leaders towards truth, and I think that the concept of post-shame coined by Alastair Campbell captures this change wonderfully. What is new is not that political leaders are lying, but that they are doing so shamelessly, without feeling that they have to be able to meet the burden of accuracy if challenged or even that they have to be consistent in their lies. To quote J.M. Coetzee, it is as if “the old powers of shame have been abolished”. Seen in this light, the experience of the last few years demonstrates that democratic institutions and discursive conventions and protocols we tend to associate with them are quite fragile. 

Could we say that the outcome of the recent presidential election in the United States reflects the citizens’ fatigue towards the condition of post-truth or does that condition have a future? 

The euphoria over Donald Trump’s defeat should not make us oblivious to the fact that Trump received more than 70 million votes. There may be various explanations for those votes, but make no mistake: the damage Trump has caused to public discourse is going to outlive his presidency. We have also been witnessing a significant rise in conspiracy theories all over the world, which confirms that the power of truth and honesty can never be taken for granted. 

To focus on truth, in the traditional understanding, once truth is established, it becomes compelling: it is no longer a matter of persuasion or debate, since no rational agent can reject it. Science is usually depicted as the authentic realm of such truth. When Aristotle famously observed that “nobody uses fine language when teaching geometry”, he assumed that the geometrical truth needed nothing more to be accepted. But as Michel Foucault argued, the constraining power of truth cannot be a function of truth alone. Take the structure of all reasoning that Foucault invites us to consider: “If it is true, then I will submit; it is true, therefore I submit; it is true, therefore I am bound.” As Foucault highlights, the “therefore” that links the two parts of such assertions is not logical, it is not something arising out of the truth itself, but is a historical-cultural phenomenon. 

Consider, for instance, some of the facts that we think are undeniably established, such as the fact that an individual named Donald Trump is the sitting President of the United States or even the fact that he actually exists. The number of people who have tested the truthfulness of that proposition directly through their senses is obviously much lower than the number of people who have never had such an opportunity. If the existence of President Trump is rarely challenged by individuals in the latter category, it is because they have faith in what passes for relevant media of proof that he exists. Similarly, it rarely occurs to us that we should personally verify the chemical composition of water in appropriate laboratory conditions to be certain that it is H2O or do archival and other types of research to accept the truth of the proposition that Napoleon waged a war against Russia in 1812 (or even that he existed for that matter). If someone does not accept that Donald Trump exists or the 1812 war against Russia actually occurred or any other fact that is commonly thought to be true, we would consider such stances as absurd, but it would be difficult to seriously engage in a rational argument with such a sceptic whether the latter has genuine doubts or is engaged in manipulation, not because we would not be able to provide evidence, but because it would be difficult to see what would count as evidence for that person causing him to accept the force of those truths. Learning what counts as evidence and where we can place our trust is an important part of our socialisation.

Incidentally, my colleague from the History Department Carolyn Biltoft has recently published a wonderfully insightful article on the anatomy of credulity and incredulity that I would urge everyone interested in such issues to read.

It seems that the United Nations system and the international legal order in general have been shaken by claims ungrounded in facts of the kind described in your piece. What are the main implications of this situation for international law professionals and academic researchers?

A traditionally minded international lawyer might ask: what’s shame or honesty got to do with international law? But shame and honesty have never been alien to international law: how can one understand the concept of good faith or what is generally referred to as gentlemen’s agreements without referring to them? In my piece, I go further and argue that the age of post-shame alerts us to the fact that one of the Rs of compliance with international law, namely, reputation, cannot be taken for granted. When invading Poland, Nazi Germany claimed that it was acting in self-defence. International lawyers often mention this example in an attempt to show that states normally feel compelled to justify their conduct by reference to international law. It is, however, difficult to see what good such empty references to international law can do to the latter. The feeling that a state must justify its conduct by reference to international law may become a meaningful constraint only when complemented with the requirement that justifications advanced must be plausible, because, as Louis Henkin pointed out, “plausible justifications are often unavailable or limited”. In a culture in which shame acts as a social control mechanism, utterly implausible justifications are likely to trigger moral discomfort. What we have been witnessing with Putin’s assertion that the soldiers on the ground in Crimea who were wearing uniforms that strongly resembled the Russian military uniforms were not Russian soldiers, but “local self-defence units” who may have bought those uniforms in a local store, with Saudi Arabia’s changing rhetoric regarding the murder of Jamal Khashoggi or with surreal justifications surrounding the recognition by the US of Israeli sovereignty over the Golan Heights is a gradual erosion of such a shame culture. In this regard, Jon Elster’s celebrated theory of the civilising force of hypocrisy needs an important correction: consistency, the hiding of base motives and the search of “impartial equivalent for self-interests” could only become moral imperatives in a setting where being opportunistic and publicly displaying base motives and self-interests is seen as something wrong. In other words, for an actor that does not care about its reputation along those lines the imperatives of consistency or impartiality would have no constraining effect.

Your piece highlights the difference between the rules governing a practice and the grammar of that practice. To what extent do breaches of international legal rules affect the grammar of international law? 

Whatever one’s conception of international law might be, there is no doubt that international law is in the business of governing the conduct of various actors through rules. But as highlighted in my piece, reducing international law to its rules would be missing its point completely. Here the concept of grammar introduced by Wittgenstein is highly relevant. For Wittgenstein, the grammar of a practice tells us what kind of object that practice is. As Hubert Schwyzer explains using the metaphor of the game of chess, the rules of that game can only govern “what happens on the chessboard”, but not what happens before or after the game, or even during the game around the chessboard (for instance, what is an appropriate thing to say or appropriate way to react for someone watching a game of chess). The rules of the game of chess cannot determine the grammar of that game: to give a simple example, that chess is a game and must be treated as such is not itself a rule of chess.

We should approach international law in the same way. What international law is, how one should feel about it or what kind of attitude one should adopt towards it is not a matter of the rules of international law but a matter of a broader sociocultural context in which international law operates. In this understanding, shame is an integral part of the grammar of international law. Thus understood, the grammar of international law would not be affected by breaches of international law as such, but by the prevailing community attitude towards those breaches. 

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Full citation of the paper: 
Zarbiyev, Fuad. International Law in an Age of Post-Shame. ESIL Reflections, vol. 9, no. 3, July 2020.

Interview by Ana Beatriz Balcazar Moreno, PhD Candidate in International Law; editing by Nathalie Tanner, Research Office. 
Banner picture: excerpt from an image by Diego Schtutman/