Although democracy and democratic practices, in the form of both direct and indirect public participation in governance are axiomatically a cherished value of liberal democratic principles, populism is nevertheless treated with wariness because of its potential to come into conflict with other cherished values of liberal democratic principles such as human rights and the rule of law. The ‘people’ as such have a limited direct role ascribed in public international law. Therefore, populism for this chapter, references a crisis of political representation where a schism between a people and its representatives is detected, or claimed, or exploited. That so-called democratic deficit makes international criminal law practitioners on the one hand particularly vulnerable to demagogic speech challenging their legitimacy and on the other particularly tempted to counter demagoguery by asserting themselves as being more legitimate representatives of a victimised people than their oppressive rulers. This chapter consequently argues that in international criminal law the people is metaphorically explicable as an optical illusion appearing and disappearing at crucial moments in different guises. In the Kenyan case study selected, these contested guises include victims and popular mandates. The people as such are never present and yet remain politically as well as legally indispensable as a rhetorical claim to ground concrete action oriented towards justice.

This chapter locates human experimentation at the intersection of the power–knowledge axis, as articulated in Agamben’s elaboration of Foucault’s insight regarding when and where humans are both examining subjects and examined objects in the production of knowledge. According to Foucault, this produces a context in which ‘science has become institutionalised as a power through a university system and through its own constricting apparatus of laboratories and experiments.’[1] The chapter demonstrates that the justifications for experimentation along the Foucaldian power–knowledge axis are often politically theodicean in justifying the evil effects and intent of power by the promise of the knowledge to be gained. This is done while reading the Faustian pact narrative as already ubiquitous in human experimentation, and by illustrating that both textually and thematically. The chapter argues that experiments on humans describe reality, normalise shared conceptions of reality and create reality by inflecting both ‘humanity’ and ‘norm’ simultaneously as a pattern and as a model, and even a standard to be fulfilled. It concludes that if experiments were solely based within a scientific paradigm without any elements of political power they would not be so legally and politically charged with discriminatory practices.

Metaphorical references to the devil in international criminal justice are various, varied and tap into a rich vein of allusion, association and meaning. These range from simple references to evil to more complex referencing to Faustian pacts of one form or the other, to the downright esoteric encompassing the arcane origins of the immunity erstwhile afforded to official acts. Kenyan President Uhuru Kenyatta’s statement ‘That devil shall be defeated’ as well as Canadian General Romeo Dallaire’s ‘Shake Hands with the Devil’ are two examples respectively resisting and promoting international individual criminal liability. That Carl Schmitt was asked by his interrogator at Nuremberg ‘when did you renounce the devil?’ and that defence counsel at the International Criminal court in the Kenyan Situation analogised the Kenyan government as being accused of entering into ‘a deal with the devil’, to the judge at Rudolf Kastner’s case in Israel related to Nazi-era crimes described him as having ‘sold his soul to the devil’; cut across perpetrators and victims and speak of knowing and willing compacts with evil in order to, allegedly, produce good. Which is to say that are all political theodicies explaining away evil by linking it in some causal way to good.

The medieval distinction between the official and the personal bodies of the state sovereign has played out before the International Criminal Court. That scenario involved the President of the Republic of Kenya willingly submitting to the jurisdiction of the International Criminal Court but only in his personal capacity and not as president. Essentially this argument is based on the medieval doctrine of the ‘King’s two bodies’. The distinction of describing two bodies united in one in its origins sits at the cross roads of legal theory and political theology. As such it draws from a rich heritage of these traditions that are of necessity developed through reconciling practical imperatives to theoretical niceties. Seeing the ancient doctrine of the King’s two bodies manifested in a contemporary context thus provides the opportunity to observe a longstanding (if dormant and obscure) legal theory applied to a novel factual situation. It demonstrates that this legal fiction remains stubbornly useful and effective in navigating between political imperatives and legal strictures. Moreover, that unusual irruption of an arcane legal and political practice into a modern day international courtroom shows that the practice still bears the unmistakeable signature of its mystical foundation.

Abstract and Keywords to be supplied.

The framing of patients making decisions about their medical treatment and care as traditional legal decisions, thresholds and formalities is a means to avoid legal liabilities through a rationalisation of decision-making, autonomy and choice. A credible account for the actual place of patients posits the sovereign power (founded in the works of Carl Schmitt and Giorgio Agamben) of the health care professional deciding the state of exception - a discrete legal space where the authority of health care professionals is both lawful and beyond the law. This reveals that dealing with broadly conceived consent issues with more law, more process and procedure but without addressing the inherent legality assumptions that empower health care professionals will always be flawed. This section piece concludes that the resolution of consent issues is about a culture of consent rather than a frame of legal process and limiting legal liability.

Since the Nuremberg trials in the ‘ Justice case’ ( United States v. Josef Alstötter, et al. ) lawyers utilising the emptied forms of legal process to commit international crimes have been legally punishable. This self-reflexive approach to law by law distinguishes legal and illegal – ‘real’ law and ‘simulated’ law. Why then was the ‘Nazi crown jurist’ Carl Schmitt not prosecuted? Aspects of his work expressed avowedly anti-Semitic sentiments while some of his intellectual concepts could be deployed to support National Socialist territorial expansion or Lebensraum . This illustrates the difficulties of judging ethical behaviour in extreme situations where definitions of the legal/illegal are themselves disputed. Schmitt’s life and work (the two are inseparable as his lifework) cross both legal and prescriptive ethics and are consequently more of a meta-ethical dilemma. The law resolves this meta-ethical dilemma through introducing a split in the legal subject between the office they hold and their person.

Giorgio Agamben relies on Bartleby from Hermann Melville’s short story of the same name as a model of political resistance. Agamben proffers Bartleby’s phrase ‘I prefer not to’ as a model for paralysing apparatuses of power. Benito Cereno is the central figure in a Melville story again of the same name. He was the captain of a slave ship taken over by the slaves whose leader Babo forced him to act as the master while they feigned the condition of slaves in order to get provisions. Babo’s signature phrase was ‘follow your leader’. This paper compares the opposed strategies of non-cooperation versus violent resistance that are embodied in each of these phrases to argue that because the slave-figure is the shadow image of the free human in liberal democratic thought, violence is an illusory basis for emancipation. Such violence would not only be mimicry of the oppressor by the oppressed but is essentially Faustian by way of conceiving of violence as inherently evil but nevertheless capable of achieving good.

Why the Faustian pact? Why international law? Why now? Inquiring into whether international law is quintessentially Faustian and how to deal with that – as this book seeks to do – does not necessarily explain and justify itself. Johann Wolfgang von Goethe’s Faust dangles the tantalising possibility of frustrating Faustian pacts. Two lines from it sparked and have spurred and sustained this project on. First was Mephistopheles’ description of himself as: A part of that force Which, always willing evil, always produces good. where he represented himself – and indeed was presented – as somehow a servant of God or at the very least as doing God’s work for Him. The second, and related to this, was Mephistopheles’ sly and ironic observation to God that Faust ‘serves You in a curious way’, which may well have been simultaneously description and self-description. Whether taken together or separately, these lines say a good deal about the Mephistophelean character and role, which claims to bring good and evil together in some sort of productive and somehow mutually reliant relationship, all the while couched in a consciously bottomless ironic register. Consequently, the Faustian pact or literary (it could never be literal – could it?) deal with the devil rests on the claim that out of evil, good will nevertheless arise. This trope utilises false hope by invoking real desire and relates good and evil with the latter somehow producing the former – that is, it explains away evil by invoking good, and is consequently, much like law, a lay theodicy.

Whereas both law and music have provided justification for specific uses of violence as a necessary evil, that overlap between two is seldom considered beyond relatively obscure aspects of Ernst Kantorowicz’s work and Giorgio Agamben’s allusions to that work. Which is to say that although law and music have provided means explaining the role of violence (a lay theodicy) this remains unexplored and under theorised. Musicality with its cadences, both tones and rhythms, is uniquely placed to consciously marshal the unconscious impersonal centripetal-centrifugal forces that simultaneously promise to bring society together while threatening to tear it apart. This moreover is all done sub rationally - taking the place of any transcendent logical legitimation of the society under ritual formation. This chapter examines, and stages encounters between war, law and music spanning The Laudes Regiae medieval acclamatory hymn and George Frideric Handel’s ‘the Lord is a Man of War’ to Bob Marley’s speech set to Reggae ‘War’ and Edwin Starr’s ‘War’ in relation to the international law on the use of force. The chapter argues that the common relation combining music, law and violence is that each singly and together can be directed to either aggregate or disaggregate - ceremoniously, the body politic.

It is a mystery as to why more is not made of the influence of Goethe’s Faust on Italian Agamben’s body of work. After all, as a great philosophical poet, and tremendously concerned with language, Goethe’s work could not have failed to capture Agamben’s attention, especially given his early and sustained interest in poetry. Indeed, Agamben cites Goethe in at least 12 of his works including: The Use of Bodies, Creation and Anarchy, Pilate and Jesus, The Kingdom and the Glory, Homo Sacer, The Signature of All Things, Stanzas, The End of the Poem, Potentialities, Karman, Adventure and Infancy and History. Crucially, the last five reference Goethe’s Faust directly. Thus, this chapter seeks to remedy the relative lack of explicit engagement and demonstrate the strong, clear and persistent influence of Goethe’s Faust that underpins Agamben’s signature philological and philosophical approach to literarily explicating law’s foundational riddles. Agamben’s Homo Sacer, project – it must be recalled – quite accidentally began in part as a direct response to the legalistic justifications for the 1990–91 Gulf War. The present discussion seeks to demonstrate that Goethean influence ironically enough through a close examination of both Faust’s and Agamben’s attempts at partially translating a biblical phrase: ‘in the beginning was the word’.

The United States promotes freedom of navigation in the South China Sea while China constructs artificial islands in the same area to bolster up its territorial claims. Both countries utilize their navies similarly but for opposed legal reasons. This reflects a geopolitical contest with the United States championing a sea open to global navigation and commerce while China builds a primarily land based ‘New Silk Road’ linking it to critical markets and natural resources. That struggle between land and sea, similarly as it were with piracy, encompasses both the law of the sea and international criminal law. Reading Carl Schmitt’s Land and Sea in light of Johann Wolfgang Goethe’s Faust in the context of the various South China Sea disputes provides the opportunity to evaluate whether it may clarify geo-strategic issues at stake that Schmitt himself did not have the opportunity to consider when elaborating his notion of Nomos.

Whereas both law and music have provided justification for specific uses of violence as a necessary evil, that overlap between two is seldom considered beyond relatively obscure aspects of Ernst Kantorowicz's work and Giorgio Agamben's allusions to that work. Which is to say that although law and music have provided means explaining the role of violence (a lay theodicy) this remains unexplored and under theorised. Musicality with its cadences, both tones and rhythms, is uniquely placed to consciously marshal the unconscious impersonal centripetal -centrifugal forces that simultaneously promise to bring society together while threatening to tear it apart. This moreover is all done sub rationally which is to say it takes the place of any transcendent logical legitimation of the society under ritual formation. The paper argues that the common relation combining music, law and violence is that each singly and together can be directed to either aggregate or disaggregate - ceremoniously, the body politic. Coronation ceremonies centring music in the installation of the monarch are no exception to this, instead being in their own way exemplary of those relations and that process.

The Buribunks live for their diaries and through their diaries. In this chapter, we take Schmitt's satirical parody of academic production and recognition seriously and at face value in order to apply it to Schmitt himself, even though – or precisely because – it would presumably be anathema to him. What would Schmitt, as he lives on in the intellectual archive of the West, look like to a Buribunk? As a focus, we examine scholarly publications stimulated by and generated in the 'War on Terror' epoch, defined as the period following the 9/11 terror attacks in the United States. In this chapter, we approach this body of scholarship as a serious, diligent Buribunk would by systematically identifying how Schmitt's work has been used in the literature. We then apply a mixed-methods approach combining a quantitative analysis with a qualitative account of the details of the discourse. The outcome of applying these methods is to reveal patterns and associations in the uptake of Schmitt's works (complete with tables and figures). Our primary conclusion is that Schmitt is no Ferker, dominating the archive; rather, his impact is fragmented, spread across disciplines and presented in heterogeneous company.

On 16 November 2018, the Extraordinary Chambers in the Courts of Cambodia in Judgement of Case 002/02 were satisfied that there was sufficient evidence to establish both the actus reus and the mens rea necessary to constitute the crime against humanity of murder with regard to surgical experimentation. In arriving at this decision, the ECCC relied on, among other things, the Medical Case decided at Nuremberg. However, in the Medical Case, unlawful medical experiments were classified under both crimes against humanity and war crimes. Moreover, under the Rome Statute for the International Criminal Court, unlawful medical experiments are only criminalised as war crimes. What is more, they are not explicitly included under the rubric of crimes against humanity, even though at Nuremberg, the same offence was classified both as a war crime and as a crime against humanity. This chapter explores the twists and turns in the historical development of the law on unlawful medical experimentation in order to outline a clearer future for defining an approach to better understanding the contours of this crime.

The Buribunks was first published by Carl Schmitt in 1918. It celebrates the future history of the next humans: beings who keep and publish a constant diary about themselves, automatic autobiographers. This introduction provides the context for this volume and its chapters. Briefly describing Schmitt, the dangers present in studying his work and The Buribunks, this introduction describes the organising themes of the book. The chapters are organised in four parts. Part I introduces Schmitt's essay The Buribunks, and presents the translation commissioned and carried out by Gert Reifarth and Laura Petersen, together with translators' comments. Part II considers The Buribunks as a typeset, as a projected imagining of humanity as informatically aware, an awareness that has become more apparent in the digital. Part III concerns The Buribunks as a mediation of writing and on the modernist literary project. Finally, Part IV examines The Buribunks within the context of Schmitt's wider oeuvre.

In the Grundrisse Karl Marx wrote of how what 'was the living worker's activity becomes the activity of the machine' and that 'the appropriation of labor by capital confronts the worker in a coarsely sensuous form; capital absorbs labor into itself - "as though its body were by love possessed"'. Marx drew this metaphorical quotation from Goethe's Faust literarily describing a poisoned swollen-bellied dying rat. The line mattered enough to Marx (and Engels) to be present too in the first volume of Capital. What work this metaphorization does and how it indirectly relates to Giorgio Agamben's enigmatic notion of inoperativity (also translated as inactivity, or inoperativeness and referencing human potential as incorporating both the capacity to do and the capacity not to do) is the central task of this paper. The paper argues that the abstracted notion of the emancipated slave who is not inclined to work for money but only works as is necessary was proffered by Marx, and is also proffered by Agamben, as an exemplary metaphorical model for general emancipation. If this is true, it would place the material conditions necessary for both Marx's and Agamben's theorisations in the concrete context of the Jamaican Quashees of the 19th Century Caribbean, and neither in classical antiquity (a fact relevant to the charge, unfounded or not, of Agamben's Eurocentrism), nor in biblical exegesis (a fact relevant to the charge, unfounded or not, of Agamben's mysticism).