STRUCTURAL CRIMINOLOGY

With over thirty thousand citations to his name, Hagan is an intellectual force. Mean Streets alone, the book on youth and homelessness that he wrote with Bill McCarthy, has been referenced more than a thousand times (Hagan and McCarthy Reference Hagan and McCarthy1997). His power-control theory has been influential in demonstrating that the relationship between gender and common forms of delinquency is mediated by class structure (Hagan, Simpson, and Gillis Reference Hagan, Simpson and Gillis1987). This scholarship is widely seen as “the first major work in a ‘structural’ perspective since the 1950s” (Williams Reference Williams and Frank2019, 37)—ever since the publication of Edwin Sutherland’s ([1949] 2009) landmark study White Collar Crime, a book that has had an outsized influence on Hagan’s contribution to the sociology of international law.

Attuned to life on the margins, Hagan, in his co-authored work on the structural determinants of youth delinquency, advanced criminological research by “combining critical and feminist thought” (Williams Reference Williams and Frank2019, 37). As Frank Williams III (Reference Williams and Frank2019, 37) recently explained, Hagan meshes structural variations in crime rates with a version of stratification informed by neo-Marxist conflict theory. Rather than using the concept of class or income as measures of stratification, he uses power. In fact, here, the argument is rather straightforward conflict theory: those with more power are less likely to be criminalized or punished, and, conversely, actions against them are more likely to be viewed as serious. Where it diverges, however, is that the notion of degree of power is rejected for a version in which who controls whom is critical. Thus, a “command” status is derived for those who have freedom of activity, who control the activities of others, and who share the authority of society. This status also conveys that these individuals are relatively free from control themselves. An “obey” status is reserved for all those who are subordinate to such control.

Hagan’s focus on “a larger version of ‘crime’ than street crime” foreshadowed his turn to international crimes (Williams Reference Williams and Frank2019, 37). It has also shaped this turn. As Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2007, 78) put it, “[m]ass incarceration and genocidal death and displacement display an awkward symmetry along the mean streets of the global village” (see also Hagan Reference Hagan2021). This hunch—that local and international crimes are more similar than commonly thought—first appeared in Hagan’s scholarship in 2000 when he was on the cusp of his international turn. At the time, he, together with McCarthy, complained about “a perverse rigidity that keeps North American criminologists off the streets and so close to home. The wider world beckons and indeed beseeches American criminology to move beyond its doorstep; we hope to help push it forward” (Hagan and McCarthy Reference Hagan and McCarthy2000, 239). Hagan, with an everchanging cast of co-authors, did just that. With recurring visits to The Hague, he demonstrated with great passion and compassion of what “global lawmakers” at the ICTY were capable (Block-Lieb and Halliday Reference Block-Lieb and Halliday2017) and the forces they were up against in their quest for international justice (see also Hagan and Levi Reference Hagan and Levi2004, Reference Hagan and Levi2005; Hagan, Levi, and Ferrales Reference Hagan, Levi and Ferrales2006; Schoenfeld, Levi, and Hagan Reference Schoenfeld, Levi and Hagan2007). With this ecology of international law, Hagan reiterated his belief in the importance of thinking structurally—in this case, about how international institutions think (see also Douglas Reference Douglas1986).

Hagan’s ontological holism is also prominently on display in Darfur and the Crime of Genocide, the book he wrote with Rymond-Richmond (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009b). This study brought power-control theory to the international stage. It rehearses Hagan’s deeply held convictions about the structure of the (international) system that go back to the intuitions that he and McCarthy first formulated in the early 1980s (see also Hagan and McCarthy Reference Hagan and McCarthy2000). Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2009b, 162) dubbed theirs “a collective action theory of genocide,” but, in effect, they ascribe a “command” status to Sudan’s former president, Omar al-Bashir, and what they call the “genocidal state system,” a structure that, they assert, is synonymous with “the government of Sudan” (165) and that, if we accept their argument, propped up a “supremacist ideology” and “an Arabization policy” (165). Hagan and Rymond-Richmond assign the “obey” status from the earlier criminological model to “racially identified African farmers and villagers” (169).

They travelled the distance between power-control theory and collective action theory in the “Coleman boat” (Coleman Reference Coleman1990, 702; for a critique, see Ramström Reference Ramström2018). Hagan and Rymond-Richmond attempted to heed the plea for explanation based on “the actions and orientations of individual persons” (qtd. in Coleman Reference Coleman1990, 4) while also trying to stay true to the tenets of structural criminology. It was a neat conceit, if not an entirely convincing one. Although the parsimonious argument in Darfur and the Crime of Genocide is logically plausible, and, from a liberal vantage point, emotionally satisfying, it is also analytically reductionist. It is reminiscent of—and partially mirrors—the reductionist line of argumentation taken at the International Criminal Court (ICC) in the prosecution’s application under Article 58 of the Rome Statute for a warrant of arrest against al-Bashir.Footnote ³ The similarity is not an accident. Hagan and Rymond-Richmond took sides very deliberately. They sought “proof,” as Bruce Hoffman (Reference Hoffman2009, 483, 484) wrote, “of intentionality which can enable the ICC to prosecute leaders on charges of genocide.” Their single-minded devotion to an anti-impunity agenda, however, came at a cost.

Upon publication, a number of commentators, and this collaborator, raised questions about partisanship. Daniel Chirot (Reference Chirot2009), a scholar of mass violence, responded more vociferously than most to Hagan and Rymond-Richmond’s scholarly intervention. A political scientist, Chirot likened their work genealogically—and disapprovingly—to that of Samantha Power. For him, Darfur and the Crime of Genocide was more sophisticated in design, but in its partisanship—and bias—no different from “A Problem from Hell,” Power’s (Reference Power2002) morality tale about bystanders to genocide. What Chirot (Reference Chirot2009, n.p.) found most unsettling, aside from their taking sides, was that Hagan and Rymond-Richmond compared violent practices in Sudan “to the way in which the United States criminalizes and mistreats some of its minorities.” Ross Matsueda (Reference Matsueda2009, 499), although more sympathetic to Hagan and Rymond-Richmond’s criminological agenda, found this exercise in analogical reasoning “curious” as well. He chided them, more gently than Chirot and Mahmood Mamdani (Reference Mamdani2009, Reference Mamdani2020), their fiercest critic, for giving “short shrift to alternative explanations” (Matsueda Reference Matsueda2009, 499): “A more satisfying discussion, on scholarly and policy grounds, would address competing interpretations of the Darfur conflict” (499). Did Hagan and Rymond-Richmond care too much? Did their beliefs about that conflict—and about international law—cloud their framing of both? Was their sociology too public (see generally Burawoy Reference Burawoy2005, Reference Burawoy2021; Clawson et al. Reference Clawson, Robert Zussman, Gerstel, Stokes and Anderton2007)?

“[A]lthough a sociologist,” according to Anthony Kronman (Reference Kronman1983, 17), “must empathize with his subjects, he does not treat their values as normative criteria in his own investigations. He attempts to understand the normative commitments of those he is studying without, as it were, reproducing the same commitments in himself.” In Hagan’s case, there is some evidence to suggest a transference may have taken place. Here, for starters, is Hoffman (Reference Hoffman2009, 484) again:

But I want to give credit where credit is due. Throughout his career, Hagan (Reference Hagan1988, 14) has made it his mission to push for “a broader, structural vision” in the study of crime. Because he cast about far and wide in this quest, Hagan was better prepared than almost any other social scientist for thinking about “system criminality” in international law (Meierhenrich Reference Meierhenrich2006a, 2006b; Nollkaemper and van der Wilt Reference Nollkaemper and van der Wilt2009). For as George Fletcher (Reference Fletcher2002, 41) observed, at around the time Hagan became interested in international criminal law, “[t]he polycentric collective as a subject is basically foreign to the legal way of thinking.” Buoyed by his immersion at the ICTY, and especially the award-winning Darfur book, Hagan returned repeatedly to the task of precising his argument about the logic of the polycentric collective (see, for example, Hagan, Levi, and Ferrales Reference Hagan, Levi and Ferrales2006; Hagan and Haugh Reference Hagan, Haugh and Sadat2011; Hagan, Kaiser, and Hanson Reference Hagan, Kaiser and Hanson2015). This pursuit has left an indelible mark on the sociology of international law. Hagan’s formidable contribution can be traced back to his advances in structural criminology and to the theoretical ideas he pieced together in the early 1980s. Robert Sampson (Reference Sampson1990, 1340) has highlighted this theoretical thread in Hagan’s scholarship. “The unifying principle,” he writes, “is that the explanation of crime is found in structural relations organized along hierarchical lines of power and authority. Whether individual or corporate in form, Hagan’s structural emphasis on relational components of power provides the basis for a theory of the commission and punishment of crime.” Thirty years later, Hagan is placing the same emphasis still.

The ingenuity of his craftsmanship, and his commitment to honing it, explain why Hagan’s contribution to the sociology of international law is so important. The number of scholars who have the analytical dexterity to speak authoritatively—and empirically—not only to the question of how law works but also to the question of how violence works is small. The number of international legal practitioners who have that skill set is close to nil. To address this particular knowledge deficit, Hagan has labored to make structural criminology usable for the prosecution of international crimes. With the support of major funding bodies—most importantly, the National Science Foundation in the United States—and a revolving cast of co-authors, he took strides toward a very public sociology of international law. Earlier in his career, Hagan observed that “[t]he purpose of a structural criminology” was “to suggest a methodology by which this work can usefully proceed” (Hagan and Palloni Reference Hagan and Palloni1986, 446). Let us examine the methodologies he has suggested to ensure that the sociology of international law can usefully proceed.

THE SCIENCE OF INTERNATIONAL LAW

Methodologically speaking, Justice in the Balkans, Hagan’s (Reference Hagan2003) most important publication on international criminal law, is an outlier. Because this book contains more doxa than data, it is not representative of his methodological approach to international law. Hagan, by habitus and inclination, is an empiricist, not an interpretivist. This is not to say that he is not skilled at thick description, for he is. Hagan’s ICTY book, much like Northern Passage before it (Hagan Reference Hagan2001), was the result of an extended listening tour. Hagan is not averse to pounding the pavement. He also has an eye for people and for a telling vignette. Better yet, Hagan likes people, despite being a self-declared introvert. This comes through in the empathetic readings of the “legal activism” about which he writes (Hagan Reference Hagan2003, 30), often with awe, as he recently marveled: “[A]ctivists have been surprisingly creative in finding ways to mobilize the influence of international law” (Hagan Reference Hagan2021, 41). The list of Hagan’s heroes is long. Like Richard Abel, Hagan has a soft spot for cause lawyers and for none more so than Louise Arbour, a former justice of the Supreme Court of Canada, who, before becoming the UN High Commissioner for Human Rights, was chief prosecutor of the ICTY and of that organization’s overseas twin, the International Criminal Tribunal for Rwanda.

Despite Hagan’s fondness for charismatic leaders, his project of “using social science to frame international crimes” has always been heavily skewed—perhaps too heavily—in favor of nomothetic reasoning (Rowen and Hagan Reference Rowen and Hagan2014). This methodological preference is noteworthy considering that he and Alberto Palloni once insisted that “a structural criminology cannot be developed, explored, or tested with one-sided methodologies” (Hagan and Palloni Reference Hagan and Palloni1986, 446). Although for a scientific empiricist the methodological differences among survey instruments, measurement models, event-history analysis, and sentencing experiments are considerable, for interpretivists they are not (see, for example, Hagan and Levi Reference Hagan and Levi2004; Hagan and Palloni Reference Hagan and Palloni2006; Kutnjak Ivković and Hagan Reference Kutnjak Ivković and Hagan2011; Hagan, Kaiser, and Hanson Reference Hagan, Kaiser and Hanson2015; Kaiser and Hagan Reference Kaiser and Hagan2015). To the latter, they all are one-sided methodologies, blighted by a misplaced belief in naturalism.

Hagan is more inclined than most to engage with scholars who see the world differently from him, scholars who are more interested in phenomenology than parsimony, who favor understanding over explanation (Meierhenrich Reference Meierhenrich2013). Hagan, a critic of “indoor criminology,” is genuinely sympathetic to qualitative research (Hagan and McCarthy Reference Hagan and McCarthy2000, 232). In fact, he has relied on interviews and observations more than other scholars who have made the science of international law their vocation (see, for example, Simmons Reference Simmons2009). Hagan is not content with desk research. In his quest for a public sociology of international law, he has pounded the genteel streets of The Hague. An indoor sociologist he is not. In one sense, Hagan’s international legal scholarship is a perfect example of “phronetic social science” (see, for example, Flyvbjerg, Landman, and Schram Reference Flyvbjerg, Landman and Schram2012; see also Meierhenrich Reference Meierhenrich2013). However, Hagan’s research on international criminal law has more in common with the “new generation of empirical studies” currently dominant in law and the social sciences (Shaffer and Ginsburg Reference Shaffer and Ginsburg2012). For the vast majority of Hagan’s collected writings on international criminal law are data driven. Although Hagan values phronesis, he trusts surveys more, which arguably is why he occasionally gives short shrift to alternative ways of seeing, including competing scholarship.

Consider Hagan’s work on “gendered genocide” (Kaiser and Hagan Reference Kaiser and Hagan2015). In this project, he and Joshua Kaiser claim that “genocide is rarely understood as intending social destruction” (72). This is a curious statement considering that a long line of scholars had written, long before they did, about the dynamics of “ontological destruction,” including the late Claudia Card (Reference Card2003), who appears in Kaiser and Hagan’s references, and Andrew Woolford (Reference Woolford2009), who does not. The example illustrates a tendency to target intellectual strawmen. Instead of taking “asocial accounts of genocide, displacement, and rape” by black-letter lawyers like William Schabas and Rhonda Copelon as their “null hypotheses” (Kaiser and Hagan Reference Kaiser and Hagan2015, 71), it would have been prudent, analytically speaking, for Kaiser and Hagan to situate themselves more carefully in the vast literature on genocide (see, most recently, Moses Reference Moses2021; for an anthology, see Meierhenrich Reference Meierhenrich2014). What they would also have found there—aside from an abundance of empirically rigorous yet non-naturalist arguments about social destruction—is a litany of critiques of hierarchical models of genocide—the type of explanation that Hagan favors.

A stated methodological goal of Hagan’s has been to develop “new types of evidence to aid in the investigation and prosecution of international crimes” (Hagan, Brooks, and Haugh Reference Hagan, Brooks and Haugh2010, 883). Inspired by the evidentiary standard in Article 58(1) of the Rome Statute of the International Criminal Court, he and colleagues called what they were generating “reasonable grounds evidence” (883).Footnote ⁴ Although their effort is commendable, the missionary zeal running through the publications that resulted is not. It is hard to shake the impression that Hagan, not content with explaining large-scale social violence sociologically—with detachment—has made it his mission to set the world to rights and prove international crimes. During the Darfur conflict, Hagan mimicked the craft of an international prosecutor. In his scholarship, he was consumed by the task of demonstrating that Sudan’s former President al-Bashir “indeed had ‘specific intent’ to destroy” (912). He was trying to prove the crime of genocide, to help the likes of Xabier Agirre Aranburu (Reference Aranburu2010), a senior analyst in the Investigation Unit of the ICC’s Office of the Prosecutor (OTP), achieve international justice “for the most serious crimes of international concern.”Footnote ⁵ In Darfur and the Crime of Genocide, Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2009b, xxi) tell with pride of how they removed evidentiary obstacles on the way to “a genocide charge,” helping to overcome resistance “both at the UN and from within the Prosecutor’s own office.” As they put it, “the Prosecutor eventually became convinced by the kind of evidence presented in this book that al-Bashir had mobilized the entire apparatus of the Sudanese state with the intention of genocidal group destruction” (xxi). What they fail to mention is that not everyone in the OTP was as convinced, including Andrew Cayley (Reference Cayley2008), the OTP’s senior trial lawyer who, up until 2007, led the investigation and pre-trial proceedings of international crimes in Darfur.

In the wake of the American war in Iraq, Hagan was again seized by the impulse to prove international crimes. This time, he and his collaborators set out to demonstrate that the 2003 invasion “was an unjust form of criminal militarism that constituted a war of aggression” (Hagan, Kaiser, and Hanson Reference Hagan, Kaiser and Hanson2015, 3). My quibble is not with the conclusions that Hagan and his co-authors reached, although I do have reservations about them, but with the methodological routes that took them there and the values that drove them. Their considerable merits notwithstanding, both of Hagan’s aforementioned inquiries into the operation of international law were marred by an excessive zeal. This precipitated a related failing: the insufficient attention that Hagan and his co-authors paid to international law, notably international criminal law. Their failing was not an altogether surprising one. Alex de Waal’s unfamiliarity with black-letter law did not stop him either from playing fast and loose—in the service of an ulterior motive—with the language of international law in his scholarship about the Darfur conflict. He, too, was after a policy goal unrelated to explanation and understanding, except that de Waal’s motive was diametrically opposed to Hagan’s. Hagan wanted to accelerate Luis Moreno Ocampo’s prosecution of al-Bashir, de Waal wanted to stop the first ICC prosecutor in his tracks (see, for example, Flint and de Waal Reference Flint and de Waal2009). The scholarship of each man was caught in a web of significance that he himself had spun. Without their realizing it, both scholars—representing opposing sides in the argument about legal intervention—had turned into partisans. Like de Waal, Hagan wears his zeal lightly; he is a ‘reasonable’ zealot. But his partisanship is real. This fact forces us to return in the domain of international law to age-old questions about the relationship between methodology and ideology. Is a “committed sociology” of international law possible (Gouldner Reference Gouldner1962, Reference Gouldner1973) or is the idea of “objective partisanship” a fallacy (Hammersley Reference Hammersley2000, 90–123)?

In Mean Streets, an example of “committed sociology” if ever there was one, Hagan and McCarthy (Reference Hagan and McCarthy1997, 1) opined that “[t]he depiction of social experience is most revealing when it considers people in extreme circumstances.” Hagan takes this truth to be self-evident, which is probably why, in their epilogue to Darfur and the Crime of Genocide, he and Rymond-Richmond drew, to the bafflement of several reviewers, parallels between “wars on crime” in the global North and “wars of counterinsurgency” in the global South (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009b, 222). Hagan’s criminological and sociological scholarship has long been concerned with “people in extreme circumstances” (Hagan and McCarthy Reference Hagan and McCarthy1997, 1). Victimhood is the overarching motif, the recurring figure that ties together the different strands of Hagan’s professional trajectory. To attenuate the violence of victimhood, Hagan has been partial, from the beginning of his career, to a “crime victimization approach” (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009b, 221). Giving a voice to people in extreme circumstances, and shining a light on their plight, appears to be a moral imperative that cuts to the heart of Hagan’s understanding of science as a vocation.

Hagan concluded the second article of his career with a cautionary note about what, in the 1970s, was called the “sociology of the interesting” (Davis Reference Davis1971). “What is interesting to some,” he wrote, may be painful for others” (Hagan Reference Hagan1973, 456). Hagan ended on this “moral” note, as he called it, to subvert Murray Davis’s (Reference Davis1971) argument about the determinants of sociological greatness (Hagan Reference Hagan1973, 456). Hagan set out to demonstrate that a sociologist is great when their theories have an impact in the real world. Forty years later, during his international turn, Hagan reprised this message. With an air of pathos, he recounted how “how sociology and its sister sciences took the stand” at the ICC to buttress the “belated charge of genocide” against al-Bashir, Sudan’s former president (Hagan Reference Hagan2011, 23). Buoyed by a liberalism of hope, Hagan then conjured a scientific utopia:

His steadfast belief in a committed sociology may explain why Hagan’s co-authored Iraq book (Hagan, Kaiser, and Hanson Reference Hagan, Kaiser and Hanson2015), like his Darfur one with Rymond-Richmond (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009b), was written for American audiences. Ever since the Vietnam War, Hagan has been on a mission to help the country of his birth atone for its original sins. The “orgies of destruction” that accompanied the My Lai massacre of March 16, 1968 (Collins Reference Collins2008, 88), and other international crimes perpetrated by US forces, coupled with the individualization of guilt (Belknap Reference Belknap2002 and the “cleansing of American memories of atrocities” in their aftermath (Savelsberg and King Reference Savelsberg and King2011, 53), are the hinge on which Hagan’s intellectual biography turns. Hagan’s work on international law has more to do with the United States than any other site of violence, which is arguably why he eventually pivoted to the mean avenues of Washington, DC, where he has, multiple times during his lifetime, seen “legal cynicism” and “criminal militarism” lead to moral bankruptcy and mass death.

Grounded in a structural approach, Hagan’s macro-sociology of international law is, above all else, about explanation. Justice in the Balkans was an outlier in this regard, its nod to understanding an aberration (Hagan Reference Hagan2003). Methodologically speaking, Hagan’s first outing in the global village has more in common with Northern Passage than with the bulk of his writings on international law. This brings me to Pierre Bourdieu’s ([2004] 2007, 4) proposition that the act of grasping a social phenomenon—like international law—requires a prior understanding of “the field with which and against which one has been formed.” What do we know about Hagan’s socialization? Where is this field that formed him? Whence the sociologist as a young man?

THE IDEOLOGY OF INTERNATIONAL LAW

Locating ourselves inside of an academic field provides “an opportunity for conscious neutralization of the probabilities of error which are inherent” in the position we occupy, which Bourdieu ([1984] 1988, xiii) “understood as a point of view implying a certain angle of vision, hence a particular form of insight and blindness.” But to locate bias, culpable and otherwise—to really understand why we think the things we do—requires more. It requires an account of life beyond the fields. Entering life worlds (Jackson Reference Jackson2013), our own and those of others, must be a part of any value analysis worthy of the name. Bourdieu ([1984] 1988, xiv) likened this additional step on the path to reflexivity to “a kind of phenomenology of one’s initial experience of the social world and of the contribution which this experience makes towards one’s construction of that world.” The sociology of sociological knowledge is part of “an accountability system” (Hammersley Reference Hammersley2000, 161), but it is not punitive: “[W]hat we know now often enables us to see how researchers of the past went wrong, yet without necessarily implying that they should have known better” (Hammersley Reference Hammersley2000, 163; emphases omitted). Did Hagan go wrong?

Hagan, like Kathryn Sikkink in political science, belongs to a postwar generation that, according to Samuel Moyn (Reference Moyn2017), has been “restive in the cage of liberal internationalism.” One of Hagan’s (Reference Hagan2001) best-known books, as mentioned, is Northern Passage. A well-regarded study, it immediately preceded Hagan’s turn to international law. It, too, was concerned with international crimes, if only indirectly. In the main, it was about the lifeworlds of American resisters of the Vietnam War who made their way to Canada. The Vietnam War was a formative experience in Hagan’s intellectual development. It is impossible to make sense of his contribution to the sociology of international law without taking into account the moral compass he acquired in the 1960s. Hagan’s intellectual journey from My Lai to The Hague was as meaningful on a personal level as it was on a professional one. The journey was accountability redux.

Doug McAdam (Reference McAdam1989, 758) has asked what happens when individuals, like Hagan, are exposed to “an activist subculture.” To investigate the biographical consequences of activism, he relied on Richard Travisano’s (Reference Travisano, Gregory and Harvey1981, 243) idea of “alternation,” a concept that Travisano took to refer to “changes of life … which are part of or grow out of existing programs of behavior.” Taking as his subject the experience of activists mobilized by the Student Non-Violent Coordinating Committee during the “Freedom Summer” in the United States, McAdam (Reference McAdam1989, 751) found that the contentious politics in 1964 “served as an instance of alternation in the lives of the volunteers and was largely responsible for the shape of their subsequent activist histories” (see also McAdam Reference McAdam1988). He argued that the alternation experience had path dependent properties. According to McAdam (Reference McAdam1989, 752), many of the thousand or so Freedom Summer volunteers (most of them white college students from northern states) who had participated in the drive to register black voters in Mississippi subsequently were, as a result of their journey south, “more attitudinally disposed toward activism.” In fact, “New Left politics became the organizing principle of their lives, personal as well as politics. In effect, the summer set them on course for a kind of activist career that has continued to shape all aspects of their lives down to the present” (758). As McAdam concludes, “[t]hey have continued not only to voice the political values they espoused during the 60s, but to act on those values as well” (758). The consequences of alternation experiences can be “lifelong or at least long-term” (758).

There is evidence to suggest, in Hagan’s case, that “life-stage specific activism” became “life course persistent activism,” to borrow language he himself coined (Hagan and Hansford-Bowles Reference Hagan and Hansford-Bowles2005, 235; emphases omitted). Hagan has continued to not only voice political values he acquired during the Vietnam era but also to act on those values. It is undeniable that a “secular imaginary of communion and redemption,” which is what Didier Fassin (Reference Fassin2012, xii) has called “humanitarian reason,” has informed the science of international law. There is “salutary power” in thinking—and governing—in humanitarian terms “because by saving lives, it saves something of our idea of ourselves” (Hagan and Hansford-Bowles Reference Hagan and Hansford-Bowles2005, 252). Hagan’s socialization also is reminiscent of C. Wright Mills (Reference Mills1959, 226), for whom sociology was the translation of “personal troubles” into “public issues.” However, as Mills (Reference Mills1959, 226) also knew, there are dark sides to virtue and to “the liberal practicality of the moral scatter.” Or, as Fassin (Reference Fassin2012, xii) writes, with the twenty-first century in mind, “[h]umanitarianism has this remarkable capacity: it fugaciously and illusorily bridges the contradictions of our world, and makes the intolerableness of its injustices somewhat bearable. Hence its consensual force” (see also Kennedy Reference Kennedy2004; Mamdani Reference Mamdani2020). This consensus is not as strong as it used to be, however. Critical international lawyers charge that the world of international law is full of “delinquent Samaritans” (Gillis and Hagan Reference Gillis and Hagan1990). They question not only the imperative of saving strangers but also the supposed duty to prosecute international crimes. Karen Engle (2016, 44) belongs to those who regard the criminalization of international law with more trepidation than Hagan: “The criminal law lens often reveals a simple picture of a world infused with a few bad actors, even monsters.” This brings us back to Hagan’s partisanship.

Reflecting on the values of others, Hagan (Reference Hagan2003, 32) briefly addressed the question of alternation in Justice in the Balkans to account for the choices of prosecutors—from the indefatigable Ben Ferencz, who led one of the twelve additional Nuremberg trials, to the staff in the ICTY’s OTP: “Ferencz responded with a form of agency that was shaped by his exposure to liberal legalism while at Harvard University. Legalism became activism in the work of Ben Ferencz. The events in Croatia, Bosnia, and Kosovo have more recently created the circumstances of parallel alternation experiences for individuals and teams at the Hague tribunal.” The Vietnam War was Hagan’s alternation experience. In a vocational move that bears a resemblance to Ferencz’s life choice, Hagan responded with a type of agency all his own—a scholastic one. His science of international law is the continuation of activism by other means. Take Darfur and the Crime of Genocide. Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2009b, 219–22) ended their book with an epilogue entitled “Collective R2P.” Theirs was a call to criminological arms: “The next generation of criminologists,” they wrote, “need never again be bystanders to genocide” (222). This line is reminiscent of another that Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2009a) used: “Whose side are you on?” The line is a variation of Howard Becker’s (Reference Becker1967) famous article title, which, in turn, was inspired by Florence Reece’s 1931 protest song in support of the miners’ strike in Harlan County, Kentucky. Hagan and Rymond-Richmond took sides just as Reece had done. They saw themselves as standing up for the victims of genocide. They defended themselves vigorously against those who found fault with their uses of criminology and methodology, but they were unable to see—and, thus, unwilling to countenance—how ideology was imbricated in their data-driven approach to international law.

Bourdieu ([1972] Reference Bourdieu and Nice1977) defined doxa as the acquired, fundamental, deeply ingrained, unconscious beliefs and values that we take as self-evident universals (for a critical discussion, see Myles Reference Myles2004). Socialization is what produces doxa, he argued, which is why the line between objectivity and subjectivity cannot be drawn as sharply as foundationalists in the philosophy of science tend to think:

Hagan and Rymond-Richmond (Reference Hagan and Rymond-Richmond2009a, 504) are right in saying that some of the critiques levelled against them were, as they put it, “wildly inaccurate and tragically misguided.” However, it is also true that they did not fully appreciate the validity of some of the critiques. After all, it was not just Mamdani (Reference Mamdani2009, Reference Mamdani2020), whom they dubbed an “intellectual provocateur” (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009a, 504), who found fault with Darfur and the Crime of Genocide. Other scholars, too, had concerns. Most were left wanting “more history and complication in the volume” (Hinton Reference Hinton2009, n.p.). Alexander Laban Hinton (Reference Hinton2009, n.p.), for example, wanted to see “a more complex account of perpetrator motivation.” Concerned by the unconscious usage of primordialist tropes in Darfur and the Crime of Genocide, he wondered whether Hagan and Rymond-Richmond had an adequate grasp of local understandings of the violence in Darfur: “Landless, nomadic Arab groups” are not just “pawns” who can readily be imbued with a “collective racial intent to kill, rape and destroy”—they are complex human beings like all of us who vary in their motives and beliefs. We may not have the data to explore this complexity, but it should at least be acknowledged (Hinton Reference Hinton2009, n.p.).

Has Hagan reflected enough on the doxa of his life? We know that he and Rymond-Richmond responded to criticism in style, with rigor: “Social science evidence supports the application of the law of genocide in Darfur” (Hagan and Rymond-Richmond Reference Hagan and Rymond-Richmond2009c). Or does it? In the year preceding their uncompromising response to critics, Cayley (Reference Cayley2008, 840), the previously mentioned OTP practitioner, in a carefully worded article publicly repudiated Moreno Ocampo’s approach to the Darfur situation and, therewith, at least indirectly, also the empirical case that Hagan and Rymond-Richmond presented in Darfur and the Crime of Genocide:

None of this is to question the rigorous research Hagan and Rymond-Richmond conducted. Rather, it is a reminder that those who see the world differently use rigor too. As Michael Burawoy (Reference Burawoy2019, 48) recently put it, “[e]vidence is as important for interpretative anthropology as it is for scientific sociology. Just the purpose is different.” Or, as Bruce Hoffman (Reference Hoffman2009, 484) thinks, the purpose of Darfur and the Crime of Genocide, was “to mobilize criminologists and strengthen the ICC’s ability to respond to Darfur’s violence.” I do not think Hagan and Rymond-Richmond would disagree. They take pride in their partisanship and in their mobilization of humanitarian reason. But should we?

Judith Shklar ([Reference Shklar1964] 1986, 3) regarded legalism “as a political ideology.” She was a lone voice among twentieth-century liberals and was virtually alone in portraying the International Military Tribunal (IMT) at Nuremberg as a “destructive trial,” to use a term Devin Pendas and I coined a few years ago (Meierhenrich and Pendas Reference Meierhenrich, Pendas, Meierhenrich and Devin2016, 41), when she expressed the idea in the 1960s that the proceeding against the so-called major war criminals in Germany “was a political one, in that it aimed at the elimination of a political enemy and of a hostile ideology” (Shklar [Reference Shklar1964] 1986, 170). Shklar had no problem with “legalistic statesmanship” at the IMT, and she would likely have appreciated as much as Hagan does Arbour’s charismatic leadership at the ICTY. At the same time, Shklar was suspicious of attempts by the nascent international rule-of-law movement in the 1950s to conceal the violence of international law behind a “justice facade” (Hinton Reference Hinton2018; Meierhenrich Reference Meierhenrich2023; see also Humphreys Reference Humphreys, Meierhenrich and Loughlin2021). The politics of international law, for her, were a given. No account of positivism or naturalism, she was convinced, could or should gloss over the violent origins of international justice in Germany and Japan and of international law more generally.

Shklar would have bristled at statements by activists like Aryeh Neier (Reference Neier2020, xiv), formerly of Human Rights Watch and the Open Society Foundations, who for decades has steadfastly championed “the values represented by rights” as if rights had never been used in the name of illiberalism and as if “legal remedies” were a panacea for the ills of historic injustice. Shklar “positioned herself against too much self-congratulation on the part of liberal democracies,” which is why she is relevant to the thinking about a corpus of international legal scholarship like Hagan’s, which, arguably, has conjured too hopeful a vision of international law (Benhabib and Linden-Retek Reference Benhabib, Linden-Retek, Meierhenrich and Loughlin2021, 296). The values of liberalism, Shklar was convinced, stand in the way of seeing international law for what it is. The rise of ideal theory in contemporary legal thought, in particular, drew her ire: “It is that very liberalism and the standards of intellectual objectivity that it demands, which make it apparently difficult for those thinkers to recognize the extent to which their preferences mold their conceptions about law and morals” (Shklar [Reference Shklar1964] 1986, 41). The problem, she reasoned, was “not hypocrisy, nor even just international law as such, but legalism as a whole, as a comprehensive view of man and society” (142). If my interpretation of his intellectual biography is correct, Hagan has held such a view ever since his alternation experience in the Vietnam era. Hagan’s empiricism is considerably more sophisticated than Neier’s activism. And, yet, as Joachim Savelsberg (Reference Savelsberg2013, 528) has pointed out, Hagan’s account of the ICTY, for example, “does not differ substantially from Neier’s,” which is to say, it is informed by an equally unshakeable faith in the virtue of liberal internationalism, especially the power of international courts and tribunals.

Georg Schwarzenberger, a student of Gustav Radbruch’s, was one of the earliest students of international courts and tribunals. The first volume of his trilogy on international law came out in 1945. Already in 1939, he had co-authored a book with a programmatic title: Making International Law Work. Schwarzenberger, like Hagan, was an advocate of macro-sociology. He once complained, in the American Journal of International Law, that the modern approach to the subject was “a medley of doctrines and assumptions” (Schwarzenberger Reference Schwarzenberger1943, 465). Schwarzenberger found the “ad hoc sociology of international lawyers” wanting (467). And, like Hagan, he built a case for an empirical approach to the study of international law. This is where the methodological similarities between Schwarzenberger and Hagan end, however. Whereas Schwarzenberger’s “prolegomena to a sociology of international law” were dystopian, Hagan’s science of international law has been positively utopian (460). Schwarzenberger, like Shklar, was an émigré scholar, a refugee from Nazi dictatorship. This, together with a decidedly European sensibility, compelled him to call for “a scientific analysis of international law,” albeit one which recognized that the values associated with liberal internationalism were “far from being self-explanatory.” The way he saw it, “the analytical and descriptive work of past generations must be supplemented by a sociological analysis of international law … as an ideology, reality and utopia” (466, 477). In certain respects, Hagan’s contribution to the study of international law exemplifies the best of socio-legal studies. But if a “liberalism without illusions” is the goal of socio-legal inquiry (Yack Reference Yack and Yack1996, 1), we must learn from Hagan’s masterful scholarship—especially from Justice in the Balkans—and go beyond.

Methodology is ideology. And the study of international law is wanting for doxa, not data. This does not invalidate the science of international law, but it does require its practitioners to be more reflexive than is their wont, to handle the methodology of the social sciences with greater care. Peter Berger’s well-known Invitation to Sociology—unlike Moshe Hirsch’s (Reference Hirsch2015) recent Invitation to the Sociology of International Law—highlighted the question of bias with the seriousness it deserves: “[T]he sociologist, being human, will have to reckon with his convictions, emotions and prejudices. But it is part of his intellectual training that he tries to understand and control these as bias that ought to be eliminated, as far as possible, from his work. It goes without saying that this is not always easy to do, but it is not impossible” (Berger Reference Berger1963, 6). Berger’s “humanistic perspective,” like Max Weber’s, called on sociologists to reject Auguste Comte’s vision of sociology “as the doctrine of progress” (6). This ties in with Sundhya Pahuja’s (Reference Pahuja2011, 260) argument about international law and its ideology: “We must always remember that the universality of international law’s key concepts is a claim, not a fact.” To facilitate such remembrance, argues Pahuja, reflexive scholars of international law need to resist attempts to produce a framework that “recognizes” the universality of certain values, and instead recognizes both the contingency of any value put forth as universal and the frame of reference supporting the universal claim (260). Whether or not we can reconceive of an open universality, we need at the very least to reconceptualize the discipline to take account of the dynamic of its universal claim and its relationship to international law’s institutional structure.

By the same token, sociologists of international law should be weary of thinking about international law unreflexively as the epitome of a “mission civilisatrice.” Fundamental critiques of international law are on the rise (see, for example, Orford and Hoffmann Reference Orford and Hoffmann2016; Eslava, Fakhri, and Nesiah Reference Eslava, Fakhri and Nesiah2017; Hinton Reference Hinton2018). They question, with good reason, the rise of “behavioral international law” and the ontological and epistemological assumptions that sustain the science of international law (Broude Reference Broude2015). And, yet, as indispensable as critical international law is for the theory and practice of international law, the road from scholarship to partisanship is no longer for radical scholars as it is for liberals, like Hagan. In the twentieth century, many sociologists thought Weber was the best guide for navigating this treacherous road: “The sociologist tries to see what is there. He may have hopes or fears concerning what he may find. But he will try to see regardless of his hopes or fears. It is thus an act of pure perception, as pure as humanly limited means allow, toward which sociology strives” (Berger Reference Berger1963, 6). Hagan and his co-authors tried, without a doubt, to see “what is there” in every single project on international law they pursued. In the twenty-first century, however, sociology’s standard operating procedure may no longer be enough. It stands to reason that more reflexivity is required than sufficed in the twentieth century. Or, as Wendy Brown (Reference Brown2023, 77), recently put it, “the mere possibility of … value-neutrality or objectivity in depicting or analyzing anything is widely and rightly challenged today.” An invitation to the sociology of international law should perhaps come with an invitation to unconscious bias training. We have come to regard such training as valuable for improving our teaching. How come we do not think it essential to improving our scholarship?

There is knowledge to be gained from observing “the effects produced on the observation, on the description of the thing observed, by the situation of the observer,” as Bourdieu ([1987] Reference Bourdieu and Adamson1990, 60; emphasis omitted) argued, because such a reflection makes it possible “to uncover all the presuppositions inherent in the theoretical posture”—Hagan’s and our own. The move toward a “reflexive sociology” of international law (Bourdieu and Wacquant Reference Bourdieu and Wacquant1992; Madsen Reference Madsen2011, 2018) would already be enriched if those of us who are committed to its advancement simply gathered the “scraps of self-objectivation” that may already be in our possession and endeavored to “systematize” them (Bourdieu [Reference Bourdieu and Nice2004] 2007, 3). Bourdieu called this exercise “auto analyse.” Weber termed it Wertanalyse.

Whatever we call it, if Shklar is correct, there exist only two ways of coping with bias in the study of international law: “Either one recognizes one’s moral impulses and their bearing upon one’s conceptions, or one does not” (Shklar [Reference Shklar1964] 1986, 224). “In neither case do they disappear” (224). The more we know about “the juridical unconscious”—ours and that of others—the more meaningful (in all senses of the word) the sociology of international law will be (Felman Reference Felman2002). What is required is nothing less than a “double rupture” (Bourdieu, Chamboredon, and Passeron [1968] Reference Bourdieu, Chamboredon, Passeron, Krais and Nice1991). Because this technique implicates “both the subject and the researcher,” it is epistemologically demanding and requires an analytical two-step: “[F]irst a critical reflection on the preconstructions that dominate a given subject area and, second, a self-critique as the means for considering one’s own scientific and social assumptions of the subject area” (Madsen Reference Madsen, Hirsch and Lang2018, 204). The two-step must become routine if it is to truly illuminate the ideology of international law and its reification. For this to happen, writes Mikael Madsen (Reference Madsen, Hirsch and Lang2018, 204–5), scholars of international law would need to accept that the double rupture “is not an operation that is done once and for all but is instead an ongoing measure for questioning findings and the way they are gathered.” This is not a small ask, but it is a meaningful one.