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Terrorism and Armed Conflict: Insights from a Law & Literature Perspective

Published online by Cambridge University Press:  11 February 2011

ANDREA BIANCHI
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Abstract

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist’, are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

Keywords

armed conflictinternational humanitarian lawinterpretationlaw & literatureterrorism
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 1 - 21
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 See, among others: (co-author with Yasmin Naqvi), International Humanitarian Law and Terrorism (2011) (forthcoming); (co-editor with Alexis Keller), Counterterrorism: Democracy's Challenge (2008); (ed.), Enforcing International Law Norms against Terrorism (2004); ‘Fear's Legal Dimension: Counterterrorism and Human Rights’, in L. Boisson de Chazournes and M. Kohen (eds.), International Law and the Quest for Its Implementation: Liber Amicorum Vera Gowlland-Debbas (2010), 175; ‘Assessing the Effectiveness of the UN Security Council's Anti-Terrorism Measures: The Quest for Legitimacy and Cohesion’, (2006) 17 European Journal of International Law 881; ‘Security Council's Anti-Terror Resolutions and their Implementation by Member States’, (2006) 4 Journal of International Criminal Justice 1044.

2 Baxter, R. R., ‘A Skeptical Look at the Concept of Terrorism’, (1973–74) 7 Akron Law Review 380Google Scholar, at 380: ‘We have cause to regret that a legal concept of “terrorism” was ever inflicted on us. The term is imprecise; it is ambiguous and above all it serves no operative legal purpose.’

3 See, among others: Fisher, M. P., ‘Applicability of the Geneva Conventions to “Armed Conflicts” in the War on Terror’, (2007) 30 Fordham International Law Journal 509Google Scholar; Posner, E. A., ‘Terrorism and the Laws of War’, (2004–05) 5 Chicago Journal of International Law 423Google Scholar; Klabbers, J., ‘Rebel with a Cause? Terrorists and Humanitarian Law’, (2003) 14 European Journal of International Law 299CrossRefGoogle Scholar; Neuman, G. L., ‘Humanitarian Law and Counterterrorist Force’, (2003) 14 European Journal of International Law 283CrossRefGoogle Scholar.

4 In F. Kafka, The Complete Short Stories (2008), at 3–4.

5 Ibid., at 4.

6 Generally on the topic, see Bianchi and Naqvi, supra note 1, to which we remand for more detailed treatment of all the relevant legal issues, only briefly touched upon in this article.

7 Characterization or qualification is the interpretive operation whereby the identification of the applicable law is made, depending on the way certain factual matrices are subsumed into pre-existing legal categories.

8 By societal practice, I mean, in this context, the conduct of social agents, primarily, but of course not exclusively, states.

9 It goes well beyond the scope of this brief essay to introduce the reader to L&L, let alone to account for its scholarly contributions. Traditionally, a distinction is made between ‘law in literature’, which studies the representation of law and legal activities in literary works, and ‘law as literature’, which focuses more on the alleged commonality between legal and literary texts. In particular, interpretive techniques, borrowed from literary theory and literary criticism, are often used to approach legal interpretive issues. In fact, the two strands are intermingled and distinctions are often artificial. For an introduction to L&L, see K. Dolin, A Critical Introduction to Law and Literature (2007); and I. Ward, Law and Literature: Possibilities and Perspectives (1995). For a historical account of L&L, see Pantazakos, M., ‘Ad Humanitatem Pertinent: A Personal Reflection on the Historical Purpose of the Law and Literature Movement’, (1995) 7 Cardozo Studies in Law and Literature 31CrossRefGoogle Scholar.

10 As aptly noted by P. Gewirtz, ‘Narrative and Rhetoric in the Law’, in P. Brooks and P. Gewirtz (eds.), Law's Stories: Narrative and Rhetoric in the Law (1996), 2 at 5: ‘one may accept that such interdisciplinary confrontations are unlikely to achieve a grand new synthesis, and acknowledge that after such encounters the participants from the different disciplines return to their mostly separate intellectual projects. But something may still change because of an encounter. Even those who do not pursue interdisciplinary collaboration any further may return to their disciplinary solitude with some new tools and insight and analogies – devices to open up at least a few inches of fresh ground on their home turf.’

11 This is particularly apparent when law is conceived as a rhetorical and social system. See White, J. B., ‘Law as Language: Reading Law and Reading Literature’, (1982) 60 Texas Law Review 415Google Scholar, at 444: ‘To conceive of the law as a rhetorical and social system, a way in which we use an inherited language to talk to each other and to maintain a community, suggests in a new way that the heart of the law is what we always knew it was: the open hearing in which one point of view, one construction of language and reality, is tested against another. The multiplicity of readings that the law permits is not its weakness, but its strength, for it is this that makes room for different voices, and gives a purchase by which culture may be modified in response to the demands of circumstance.’

12 The alleged commonality of the legal and literary discourse on the basis of their being both based on rhetoric and the analysis of texts and on their capacity to constitute by their own discourse a rhetorical community was underlined by James Boyd White in his seminal work The Legal Imagination: Studies in the Nature of Legal Thought and Expression (1973). In fact, the capacity of both disciplines, law and literature, to shape reality by language is a recurrent theme in the L&L movement.

13 For a cursory account of the most relevant debates about interpretation in literary studies, see Ward, supra note 9, at 43 et seq.

14 L. Tolstoy, War and Peace (2006). Given the editorial style constraints of this Journal, the year of publication for this and other literary works cited in this article refers to the edition owned or consulted by the author.

15 E. M. Remarque, All Quiet on the Western Front (1996).

16 See, e.g., Kretzmer, D., ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’, (2005) 16 European Journal of International Law 171CrossRefGoogle Scholar; H. P. Gasser, ‘International Humanitarian Law’, in H. Haug (ed.), Humanity for All: The International Red Cross and Red Crescent Movement (1993), 1; D. Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’, (1979) 163 (II) RCADI 117.

17 See President Bush's Memorandum on Humane Treatment of Taliban and Al Qaeda Detainees of 7 February 2002, available at www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf. For some useful insights on the Bush Administration's counterterrorism policy, particularly on the use of coercive interrogation techniques, see P. Sands, Torture Team: Rumsfeld's Memo and the Betrayal of American Values (2008).

18 See the UK Manual of the Law of Armed Conflict (2004), at 27 and 29.

19 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Reports 14, especially para. 115.

20 Prosecutor v. Tadić, Judgement, Case No. IT-94–1-A, Appeals Chamber, 15 July 1999. See in particular paras. 122 and 131.

21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, [2007] ICJ Reports 43.

22 Ibid., paras. 404–405.

23 Prosecutor v. Aleksovski, Judgement, Case No. IT-95–14/1-A, Appeals Chamber, 24 March 2000, para. 146 (footnote omitted): ‘To the extent that it provides for greater protection of civilian victims, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure “protection of civilians to the maximum extent possible”.’

24 For a survey, see Bianchi, A., ‘The International Regulation of the Use of Force: The Politics of Interpretive Method’, (2009) 22 Leiden Journal of International Law 651CrossRefGoogle Scholar; Tams, C., ‘The Use of Force against Terrorists’, (2009) 20 European Journal of International Law 359CrossRefGoogle Scholar.

25 Identical letters dated 13 July 2006 from the chargé d'affaires a.i. of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2006/518 (2006).

26 See the UNSC debates on the situation in the Middle East, including the Palestinian question, of 21 July 2006, UN Doc. S/PV.5493 (2006) and Resumption. Switzerland condemned the conflict and recalled IHL obligations during its statement in the meeting. However, it considered the conflict not to be of an international character for the purpose of its neutrality: see Confederation Suisse, Dépt. Fédéral des Affaires Etrangères, Rapport de politique étrangère 2007, Annexe 1 – Neutralité, 15 June 2007, available at www.eda.admin.ch. Further international reactions are reported in Tancredi, A., ‘Il problema della legittima difesa nei confronti di milizie non statali alla luce dell'ultima crisi tra Israele e Libano’, (2007) 90 Rivista di Diritto Internazionale 969, at 970–1Google Scholar. See also UN Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Res. S-2/1, UN Doc. A/HRC/3/2 (2006), para. 57.

27 See Provisional Agenda of the 5493rd Meeting of the UN Security Council, UN Doc. S/PV.5493 (2006).

28 See J. Dugard, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, UN Doc. A/HRC/4/17 (2007), paras. 43–45.

29 See UN Security Council Res. 1860, 8 January 2009, UN Doc. S/RES/1860 (2009).

30 As is well known, the recent submission of a declaration of acceptance of the ICC jurisdiction by Palestine under Art. 12(3) of the ICC Statute is turning out to be particularly controversial in light of the thorny issue of Palestine's alleged statehood.

31 See Provisional Agenda of the 6061st Meeting of the UN Security Council, UN Doc. S/PV.6061 (2009).

32 See the debates preceding the adoption of UN Security Council Res. 1860, Provisional Agenda of the 6061st Meeting of the UN Security Council, UN Doc. S/PV.6061 (especially the statements by the Czech Republic, on behalf of the European Union, and of Cuba, on behalf of the Non-Aligned Movement), and also Provisional Agenda of the 6063rd Meeting of the UN Security Council, UN Doc. S/PV.6063 (2009).

33 Y. Dinstein, The International Law of Belligerent Occupation (2009), at 69 ff. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Reports 136, para. 106; Human Rights Committee, General Comment No. 31 (2004), para. 11: ‘the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.’

34 E. Hemingway, For Whom the Bell Tolls (1999).

35 E. Rosero (trans. A. McLean), The Armies (2009), originally published as Los Ejércitos (2007). The book was awarded in 2009 the Independent Foreign Fiction Prize in the United Kingdom.

36 The experience of the Nepalese government vis-à-vis the Maoists and the government of Colombia vis-à-vis the ELN demonstrates that the terrorist label is being exchanged for recognition of an armed conflict as a precondition for peace talks.

37 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, Appeals Chamber, 2 October 1995, 35 International Legal Materials 32 (1996), para. 70.

38 Ibid.

39 Prosecutor v. Tadić, Opinion and Judgement, Case No. IT-94–1-A, Trial Chamber, 7 May 1997, para. 562: ‘The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict.’ This test was also adopted in Prosecutor v. Delalić, et al. (Celebici case), Judgement, Case No. IT-96–21-T, Trial Chamber II, 16 November 1998, para. 184; Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95–14/2-A, Appeals Chamber, 17 December 2004, para. 341; Prosecutor v. Limaj, Fatmir et al., Judgement, Case No. IT-03–66-T, Trial Chamber II, 30 November 2005, paras. 84 and 89; Prosecutor v. Haradinaj, Ramush et al., Judgement, Case No. IT-04–84-T, Trial Chamber I, 3 April 2008, para. 38.

40 Prosecutor v. Haradinaj, Trial Judgement, ibid., para. 49.

41 Prosecutor v. Lubanga, Decision on the Confirmation of Charges, Case No. ICC-01/04–01/06–803, Pre-Trial Chamber I, 29 January 2007, para. 234.

42 See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council Res. 1564 of 18 September 2004, UN Doc. S/2005/60 (2005), para. 4.

43 Compare ICC Statute, Art. 8(2)(c) and (d) with Art. 8(2)(e) and (f). See also Cullen, A., ‘The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)’, (2008) 12 Journal of Conflict & Security Law 419CrossRefGoogle Scholar.

44 HH & Others (Mogadishu: Armed Conflict: Risk) Somalia v. Secretary of State for the Home Department, CG [2008] UKAIT 00022, 28 January 2008, para. 319; KH (Article 15(c) Qualification Directive) Iraq v. Secretary of State for the Home Department, CG [2008] UKAIT 00023, 25 March 2008, paras. 72–73.

45 KH (Article 15(c) Qualification Directive) Iraq v. Secretary of State for the Home Department, ibid., para. 81.

46 Ibid., paras. 82–83.

47 J. S. Pictet, Commentary to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at 36.

48 The ICTR has interpreted Common Article 3 in this way. See, e.g., Prosecutor v. Rutaganda, Judgement, Case No. ICTR-96–3, Trial Chamber, 6 December 1999, paras. 92–93: ‘[C]onflicts referred to in Common Article 3 are armed conflicts with armed forces on either side engaged in hostilities: conflicts, in short, which are in many respects similar to an international conflict, but take place within the confines of a single country.’ See also Prosecutor v. Musema, Judgement, Case No. ICTR-96–13-T, Trial Chamber, 27 January 2000, paras. 247–248: ‘[A] non-international conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.’

49 Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense, et al., 126 S.Ct. 2749 (2006), 29 June 2006, at 36 (of slip opinion).

50 Milanovich, M., ‘Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killing Case’, (2007) 89 International Review of the Red Cross 373, at 378Google Scholar.

51 See, e.g., Sassoli, M., ‘Terrorism and War’, (2006) 4 Journal of International Criminal Justice 959CrossRefGoogle Scholar, at 966: a sustained “war” between one or several states, on the one side, and a transnational terrorist group such as Al Qaeda on the other side could theoretically fall under the concept of a non-international armed conflict.’

52 ‘Fundamental Standards of Humanity’, Report of the Secretary-General submitted pursuant to Commission Res. 2000/69, UN Doc. E/CN.4/2001/91 (2001); ‘Fundamental Standards of Humanity’, Report of the Secretary-General submitted pursuant to Commission Res. 1998/29, UN Doc. E/CN.4/1999/92 (1998); ‘Minimum Humanitarian Standards’, Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights Res. 1997/21, UN Doc. E/CN.4/1998/87 (1998). See also 1990 Declaration on Minimum Humanitarian Standards (the ‘Turku Declaration’), UN Doc. E/CN.4/1995/116 (1995). One should note also standard minimum rules for the treatment of prisoners, UN Doc. A/CONF/611 (1955) adopted on 30 August 1955 by the first United Nations Congress on the prevention of crime and the treatment of offenders. Their purpose is to provide a well-ordered penal arrangement so as to preserve the human dignity of the detainee. They were updated by the UN General Assembly in a resolution entitled ‘Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment’, UN General Assembly Res. 43/173 of 9 December 1988, UN Doc. A/RES/43/173 (1988). See P. H. Koojmans, ‘In the Shadowland between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process in Humanitarian Law of Armed Conflict’, in A. J. M. Delissen and G. J. Tanja (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (1991), at 239.

53 See Human Rights Council, ‘Fundamental Standards of Humanity’, Report of the Secretary General’, UN Doc. A/HRC/7/62 (2008), para. 38, in which the SG, after summarizing recent developments in international law, observed, based on previous reports, that ‘while there [is] no need to develop new standards, there [is] a need to ensure respect for existing rules of international law aimed at ensuring the protection of persons in all circumstances and by all actors’.

54 J. Littell, Les bienveillantes (2006).

55 J. Littell, The Kindly Ones (2010).

56 Aeschylus (trans. A. Shapiro and P. Burian), The Oresteia (2003).

57 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Reports 226, para. 79.

58 See Art. 4(2)(d) and Art. 13(2) of AP II.

59 Art. 4(d) ICTR Statute (Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II) (giving jurisdiction over ‘acts of terrorism’).

60 Prosecutor v. Galić, Judgement, Case No. IT-98–29-T, Trial Chamber, 5 December 2003; Prosecutor v. Galić, Judgement, Case No. IT-98–29-A, Appeals Chamber, 30 November 2006.

61 Prosecutor v. Galić Appeal Judgement, ibid., para. 79.

62 Prosecutor v. Galić Appeal Judgement, ibid., Judge Schomburg's Partly Dissenting Opinion.

63 Prosecutor v. Brima et al. (AFRC Case), Judgment, Case No. SCSL-04–16-T, Trial Chamber, 20 June 2007, and Judgment, Case No. SCSL-04–16-A, Appeals Chamber, 2 February 2008; Prosecutor v. Fofana et al. (CDF Case), Judgment, Case No. SCSL-04–14-T Trial Chamber, 2 August 2007, and Judgment, Case No. SCSL-04–14-A, Appeals Chamber, 20 May 2008; Prosecutor v. Sesay et al. (RUF Case), Judgment, Case No. SCSL-04–15-T, Trial Chamber, 2 March 2009, and Judgment, Case No. SCSL-04–15-A, Appeals Chamber, 26 October 2009. It is to be regretted that the SCSL missed the opportunity of specifying the constitutive elements of the crime of ‘acts of terrorism’ derived from Art. 4(2)(d) of Additional Protocol II, since it has consistently interpreted this provision as encompassing or being analogous to the narrower offence of ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’ in Art. 13(2) of Additional Protocol II or Art. 51(2) of Additional Protocol I.

64 Prosecutor v. Milošević, Judgement, Case No. IT-98–29/1-T, Trial Chamber, 12 December 2007, para. 886.

65 Ibid., para. 888.

66 Cf. Office of the Public Prosecutor of the Italian Republic, Milan Court of Appeal v. Bouyahia Maher Ben Abdelaziz, Toumi Ali Ben Sassi, and Daki Mohamed, n. 1072, 17 January 2007 (Italy, Court of Cassation, 1st crim. section) in (2007) 17 Guida al Diritto 90, in which the Italian Court of Cassation held that an attack against a military target is to be considered a terrorist attack when, given the actual and concrete circumstances, the consequences would entail certain and inevitable harm to the life and physical well-being of civilians, resulting in the spread of panic among the general public (paras. 4.1 and 6.4).

67 J. Conrad, The Secret Agent (2008).

68 See, e.g., Steyn, J., ‘Guantanamo: The Legal Black Hole’, (2004) 53 International & Comparative Law Quarterly 1CrossRefGoogle Scholar; Dörmann, K., ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’, (2003) 85 International Review of the Red Cross 45CrossRefGoogle Scholar. It is of note that in 2006, the Israeli Supreme Court determined that members of Palestinian terrorist organizations were civilians due to the fact that they did not meet the definition of combatant under Art. 1 of The Hague Regulations (1907), Art. 13 of GC I and GC II, or Art. 4 of GC III (1949). Notably, the Court rejected the recognition of a third category of ‘unlawful combatants’, although it determined that ‘[r]ules developed against the background of a reality which has changed must take on dynamic interpretation’ (The Public Committee against Torture in Israel et al. v. The Government of Israel et al., HCJ 769/02, 14 December 2006 (Israel Supreme Court), para. 28).

69 It is impossible to account for the vast literature on the Guantánamo Bay detention centre. For an early assessment of the status of Guantánamo detainees, referred to also by the US Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507, at 518 (2004), see Naqvi, Y., ‘Doubtful Prisoner-of-War Status’, (2002) 84 International Review of the Red Cross 571CrossRefGoogle Scholar. On secret detention centres in Council of Europe member states, see the Council of Europe Parliamentary Assembly Resolution 1562 of 27 June 2007 and recommendation 1801, upholding Mr Dick Marty's Report. For a legal opinion of Council of Europe member states’ obligations under international law, see the Council of Europe Venice Commission's Opinion on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, Opinion 363/2005, 11 October 2006, Strasbourg, Council of Europe, 2006.

70 For a detailed account of the legal issues related to status, treatment, and detention of terrorist suspects in time of armed conflict, see Bianchi and Naqvi, supra note 1, Chapter 6.

71 Kafka, supra note 4, at 140 ff.

72 See Pejic, J., ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’, (2005) 87 International Review of the Red Cross 375CrossRefGoogle Scholar; See also Chatham House and ICRC, Report on Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict (2008), reproduced in (2009) 91 IRRC 859. Finally, worthy of mention in this context is the Copenhagen Process on the Handling of Detainees in International Military Operations, launched at the initiative of the Danish Government and other sponsors in 2007 (see the information provided by Denmark for the Secretary General's report on the status of the Additional Protocols related to the protection of victims in armed conflict and on measures to strengthen the existing body of international humanitarian law, UN Doc. A/63/118 (2008) at www0.un.org/ga/sixth/63/Addtl_Prot_TEXT/ADD_Denmark.pdf).

73 The document, adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009, is reproduced in (2008) 90 International Review of the Red Cross 991.

74 For a contemporary form of formalist thinking, see Schauer, F., ‘Formalism’, (1988) 97 Yale Law Journal 509CrossRefGoogle Scholar; and, more recently, by the same author, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009).

75 An interesting critique of the significance and use of legal categories comes from ‘cognitive legal studies’ and ‘cognitive linguistics’. For a sample of the work of its most eminent representatives, see: G. Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal about the Mind (1990); G. Lakoff and M. Johnson, Metaphors We Live By (2003); Fillmore, C., ‘Frame Semantics and the Nature of Language’, in Origins and Evolution of Language and Speech (1976) 280 Annals of the New York Academy of Sciences 20CrossRefGoogle Scholar; C. Fillmore, ‘Scenes-and-Frames Semantics’, in A. Zampolli (ed.), Linguistic Structure Processing (1977), at 55; C. Fillmore, ‘Frame Semantics’, in Linguistic Society of Korea, Linguistics in the Morning Calm (1982), at 111; C. Fillmore, ‘Towards a Descriptive Framework for Spatial Deixis’, in R. J. Jarvella and W. Klein (eds.), Speech, Place and Action: Studies in Deixis and Related Topics (1982), at 31; and S. L. Winter, A Clearing in the Forest: Law, Life and Mind (2001).

76 For a more detailed analysis, see A. Bianchi, ‘Textual Interpretation and (International) Law Reading: The Myth of (In)Determinacy and the Genealogy of Meaning’, in P. Bekker et al. (eds.), Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (2010), at 34.

77 A powerful critique of the way in which legal academics and practitioners think about the law is expressed in the works of P. Schlag. Among his most inspiring contributions, see: Schlag, P., ‘“Le Hors de Texte, C'est Moi”: The Politics of Form and the Domestication of Deconstruction’, (1990) 11 Cardozo Law Review 1631Google Scholar; ‘The Problem of the Subject’, (1991) 69 Texas Law Review 1267; The Enchantment of Reason (1990).

78 Bourdieu, P., ‘The Scholastic Point of View’, (1990) 5 (4)Cultural Anthropology 380, at 384CrossRefGoogle Scholar.

79 Fitzmaurice, G., ‘The United Nations and the Rule of Law’, (1952) 38 Transactions of the Grotius Society 135Google Scholar, at 142: ‘but the real fault of the lawyers . . . is that they have not, as lawyers, been single-minded enough, and have not resisted the temptation to stray into other fields.’

80 ‘The narrative of atrocity could be seen as a good in itself, offering its own special form of redress through catharsis and of rectification through the truths of storytelling.’ Peters, J. Stone, ‘Literature, the Rights of Man, and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony’, (2005) 17 Yale Journal of Law and Humanities 253, at 255–6Google Scholar.

81 W. Szpilman, The Pianist: The Extraordinary Story of One Man's Survival in Warsaw, 1939–1945 (2000). The episode referred to in the text can be read at 177 ff.

82 The Pianist (2002), directed by Roman Polanski, starring Adrien Brody.

83 See the well-known quote about why judges should study poetry: ‘Judges should study poetry for the same reason all of us should – because from it we can learn what it really means to be human.’ Braithwaite, W. T., ‘Why, and How, Judges Should Study Poetry’ (1988) 19 Loyola University of Chicago Law Journal 809, at 825Google Scholar.

84 ‘treating law as narrative and rhetoric means looking at facts more than rules, forms as much as substance . . . . It means examining not simply how the law is found but how it is made . . . . And because its focus is story as much as rule, it encourages awareness of the particular human lives that are subjects or objects of the law, even when that particularity is subordinated to the generalizing impulses of legal regulation’, Gewirtz, supra note 10, at 3.

85 For the proposition that literature helps expand sympathy and break up the often compelling forms of instrumental rationality prevailing in Western culture, see White, J. B., ‘Law and Literature: No Manifesto’, (1987) 39 Mercer Law Review 739, at 741Google Scholar.

86 See Brooks, P., ‘Narrativity of the Law’, (2002) 14 Law and Literature 1CrossRefGoogle Scholar, at 2: ‘narrative is morally a chameleon that can be used to support the worse as well as the better cause.’

87 The idea that the normative order in which we live can only be understood by reference to the narratives and myths by which the community structures its organized life lies at the heart of the well known essay by R. Cover, ‘Foreword: Nomos and Narrative’, (1983–84) 97 Harvard Law Review 4, at 4: ‘No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.’

88 Commitment to studying the ‘language’ of law as ‘the one thing that can activate the law, and change it’ is considered crucial by the L&L movement. See Ward, supra note 9, at 26. All the more so, as one realizes that law tends to be conceived ‘as an independent rational structure, built up of stable denotations that corresponds to an objective reality’, with lawyers and law students failing ‘to recognize that discourse is itself a polyphonic construct, coloring and colored by human experience’, E. Perry Hodges, ‘Writing in a Different Voice’, (1988) Texas Law Review 633, at 638.

89 R. Posner, Law and Literature: A Misunderstood Relationship (1988); Law and Literature (2009).

90 See his seminal work Economic Analysis of Law (1973), now in its 7th edition (2007). The idea that ‘the central, unique and irreplaceable contribution of the law and literature movement’ is precisely that of avoiding becoming ‘the person posited as economic man’ is put forward by West, R., ‘Economic Man and Literary Woman: One Contrast’, (1987) 39 Mercer Law Review 867, at 874–5Google Scholar.

91 Posner, supra note 89, at 548.

92 For an inspiring account of the allegedly technical, ‘managerial’ culture prevailing nowadays in international law, see Koskenniemi, M., ‘The Fate of International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1CrossRefGoogle Scholar.

93 See Gewirtz, supra note 10, at 13.

94 On the simple lessons that lawyers might draw from ‘at least a dollop of literary technique’, see Weisberg, R. H., ‘Three Lessons from Law and Literature’, (1993) 27 Loyola of Los Angeles Law Review 285, at 287Google Scholar.

95 On the concept of ‘interpretive community’, see S. Fish, Is There a Text in This Class? The Authority of Interpretive Communities (1980) and, by the same author, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989). As is known, the notion of ‘interpretive community’ was developed by Fish in connection with literary studies, to explain the question of the source of interpretive authority (see Doing What Comes Naturally, at 141). Fish describes an interpretive community as ‘not so much a group of individuals who shared a point of view, but a point of view or way of organizing experience that shared individuals in the sense that its assumed distinctions, categories of understanding, and stipulations of relevance and irrelevance were the content of the consciousness of community members who were therefore no longer individuals, but, insofar as they were embedded in the community's enterprise, community property. It followed that such community-constituted interpreters would, in their turn, constitute, more or less in agreement, the same text, although the sameness would not be attributable to the self-identity of the text, but to the communal nature of the interpretive act’ (ibid.).

96 For an attempt in this direction, see Bianchi, supra notes 24 and 76.

97 See Brooks, supra note 86, at 9: ‘much of the law's efficacy and force derive from its self-enclosure, its capacity to impose an exclusionary rule on attempts to open up its hermeticism.’