Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law, 124 Yale L.J. 1628 (2015)
The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the deviant, but often we will find instead an ordinary person, one who commits a crime at the barrel of a gun or who succumbs to the awful indirect coercion that pervades entire communities in the throes of transformative violence. In the ashes of atrocity, criminal courts have been created, but many scholars have come to think that the basic structures of criminal law- built to address willful deviance from society's norms-are inappropriate for dealing with the complex context of mass atrocity crimes.
This Article challenges this critique by making three contributions. First, it presents a novel descriptive account of how courts addressing mass atrocity crimes wrestle with the concept of deviance in criminal responsibility. Second, applying principles of domestic criminal law, the Article proposes a theory of "aspirational expressivism," which envisions international criminal law as legitimately and positively setting forth aspirations for human behavior, rather than simply drawing a line between normalcy and deviance. Finally, the Article builds on the theory of aspirational expressivism to make the normative claim that courts can be more than forums for condemning the world's horrors, as their role has been predominantly conceived. Instead, they can be- and should be- sites of storytelling, providing an opportunity for understanding how individuals choose to perpetrate unspeakable crimes, articulating how we hope people will behave in the most demanding of circumstances, and shaping our beliefs about the way we ought to behave under the unflattering light of the way we actually do.