Jamie Mayerfeld

I am a professor of Political Science at the University of Washington. In addition, I am adjunct professor of Law, Societies & Justice, faculty associate of the Center for Human Rights, and associate faculty in the Program on Values in Society.  I also serve as Seattle campus advisor to the Human Rights Minor.

Teaching

My political theory courses have covered the history of political thought; democratic theory; theories of justice; nationalism; punishment; and controversies regarding politics and religion. In addition, I teach a number of courses on the law, politics, and theory of human rights.

Research

My current research focuses on the philosophy of human rights and the international institutional architecture needed to give human rights adequate protection.

Books

I recently published The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law (University of Pennsylvania Press, 2016). In this work, I develop an account of constitutional democracy as a cooperative project enlisting both domestic and international guardians to strengthen the protection of human rights.  I also wrote Suffering and Moral Responsibility (Oxford University Press, 1999).

Articles and Book Chapters

“The High Price of American Exceptionalism: Comparing Torture by the United States and Europe after 9/11.”  In Michael Goodhart and Anja Mihr, eds., Human Rights in the 21st Century: Continuity and Change since 9/11, Palgrave/Macmillan, 2011.  Abstract:  Notwithstanding the collusion of various European officials in the interrogation program of the Bush administration, the use of torture as a counter-terrorist strategy after 9/11 generally met stronger resistance in Europe than the United States.  An important reason is that in the years preceding 9/11 Europe did more to reinforce the international legal prohibition of torture and ill-treatment. The contrast is particularly striking in the 1990s, when Europe developed new mechanisms to strengthen the prohibition, whereas the U.S. accompanied its ratification of important anti-torture treaties with conditions greatly diluting their domestic impact.  Four differences are salient:  (1) Europe did not follow the U.S. in attaching loopholes to the international legal prohibition of torture and ill-treatment.  (2) Europe, unlike the U.S., adopted judicial oversight of its international human rights commitments.  (3) Europe, unlike the U.S., adopted an international inspection regime to monitor compliance with the international prohibition of torture and ill-treatment.  (4) Europe committed itself more fully than the U.S. to the criminalization of torture and other war crimes.  What underlies all four differences is that Europe made the enforcement of human rights a collective enterprise, whereas the United States has continued to act as judge in its own case.  The same factors help explain divergent transatlantic trends in the harshness of criminal punishment.

“A Madisonian Argument for Strengthening International Human Rights Institutions: Lessons from Europe.” In Luis Cabrera, ed., Global Governance, Global Government: Institutional Visions for an Evolving World System, SUNY Press, 2011.  Abstract:  Human rights require external as well as internal safeguards.  They require the backing of strong international human rights institutions.  Such institutions extend and reinforce the checks and balances on which constitutional democracy depends.  Although they constitute a form of transnational governance, they should not take the form of a transnational (or world) sovereign, because decentralization is vital for their success.  What is needed for the protection of human rights is a model of shared governance built on the cooperation of international institutions, democratic states, and civil society.   The system envisages that multiple democratic states function as co-guardians of human rights within each national jurisdiction.  The principle of “concurrent responsibility,” as I call it, is intrinsic to democracy itself, and is a central theme in the political thought of James Madison.  The wisdom of this approach is demonstrated in the achievements of the European human rights regime.

“Ruthlessness, Impunity, and the Effacement of International Human Rights Law,” Santa Clara Journal of International Law, vol. 8, no. 1 (2010).  Abstract: This article is a response to Brad R. Roth’s article, “Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice.”  I argue that the development of international human rights law and international criminal law (ICL) expresses a principled rejection by the international community of what Roth calls “ruthlessness” — the use of extreme human rights violations as a policy instrument.  By expanding ICL, we can combat impunity without resort to retroactive punishment.

“The Democratic Legitimacy of International Human Rights Law,” Indiana International and Comparative Law Review, vol. 19 (2009): pp. 49-88.  Abstract: The claim that international human rights law is anti-democratic resonates with influential theories of democracy and familiar criticisms of judicial review. It is, however, mistaken. The only legitimate conception of democracy is one with a built-in commitment to human rights. Therefore, international human rights law, by upholding human rights, reinforces democracy. It might be objected that such reasoning ignores persistent disagreement about the meaning of human rights. I distinguish three possible reasons why such disagreement might be considered a problem: first, because it is wrong to impose a conception of human rights on someone who disagrees with it; second, because disagreement demonstrates the possibility of error; and third, because disagreement threatens the political realization of correct understandings of human rights. I argue that the first reason is confused, while the second and third do not count against the legitimacy of international human rights law. On the contrary, international human rights law offers a constructive response to disagreements about human rights.

“In Defense of the Absolute Prohibition of Torture,” Public Affairs Quarterly, vol. 22. no. 2 (April 2008), pp. 109-28. Posted with kind permission of the journal. Abstract: The hypothetical “ticking bomb scenario” has been used as an argument that torture is morally permitted in exceptional cases. I argue that we should set aside the ticking bomb scenario because of its unreal character, that realistic approximations of the scenario pose an unacceptable risk to the innocent, that other extensions of the ticking-bomb argument to more realistic scenarios not sharing its morally relevant features must be rejected, and that pragmatic reasons for an absolute legal ban on torture also support an absolute moral ban on torture.

“Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture,” Harvard Human Rights Journal, vol. 20 (Spring 2007): 89-140. Copyright 2007, President and Fellows of Harvard University and Harvard Human Rights Journal. Abstract: How was the United States able to institute a policy of cruel and inhuman treatment, including torture, in the wake of 9/11? The answer lies partly in the longstanding refusal of the United States to incorporate international human rights law into its legal system. The lesson of recent experience is that domestic human rights protections need international reinforcement. Only through the full incorporation of international human rights law can the United States make a genuine commitment to human rights and be held to that commitment.

“Ending Impunity,” a Response to Larry May, Crimes Against Humanity, Ethics and International Affairs, vol. 20, no. 3 (September 2006), pp. 361-66. Abstract: There are two common ways of justifying international criminal trials. One is to say that certain crimes constitute such a grave moral and political evil that they require a response from the international community. The other is to say that international criminal trials are needed to deter actors who would otherwise perpetrate crimes with impunity. While in Crimes Against Humanity Larry May favors the first justification, I make a case for emphasizing the second.

“The Democratic Legacy of the International Criminal Court,” Fletcher Forum of World Affairs, vol. 28, no. 2 (Summer 2004), pp. 147-56. Abstract: The International Criminal Court is an important tool for the consolidation and spread of democracy. When democracies join the ICC, they protect themselves against anti-democratic forces, because word goes out that the Court can prosecute anyone who uses terror to seize or retain unconstitutional power. When non-democracies become interested in joining the ICC, they receive an incentive to move toward democracy, since democratic institutions deter the crimes that fall under the Court’s jurisdiction. Unsurprisingly, the vast majority of ICC member states are democratic, a fact that enhances the Court’s integrity and effectiveness. The ICC deserves support from all those who believe in democratization as the key to protecting fundamental human rights.

“The Mutual Dependence of External and Internal Justice: The Democratic Achievement of the International Criminal Court” Finnish Yearbook of International Law, vol 12 (2001), ISBN 90-04-13755-6, Martinus Nijhoff Publishers: pp. 71-107. Posted with kind permission of the publisher. Abstract: The externalization of justice – the use of foreign and international courts to prosecute human rights crimes after the breakdown of domestic justice – has provoked worries about illegitimacy, distance, retroactivity, double standards, and unscrupulous prosecutions. The International Criminal Court goes a long way to solving these problems. Its basis in state consent enhances the legitimacy of its judgments; its complementary jurisdiction encourages states to take responsibility for their own human rights problems; and its prospective jurisdiction avoids divisive debates over the past while focusing states’ attention on the future. As a court of last resort, the ICC provides states a form of “democratic insurance” against the emergence of domestic tyranny, while the democratic states that form the bulk of its membership will work hard to preserve its integrity. Under the auspices of the ICC, internal and external justice are made to bolster each other.

“Who Shall Be Judge? The United States, the International Criminal Court, and the Global Enforcement of Human Rights,” Human Rights Quarterly, vol 25 (February 2003): pp. 93-129. Abstract: The International Criminal Court, empowered to prosecute individuals guilty of the worst human rights atrocities, has encountered firm resistance from the United States. Underlying this dispute is a clash between two different models for achieving the global enforcement of human rights: a collective enforcement model exemplified by the Court, and a unidirectional enforcement model favored by the US. Both models present difficulties, but those of the collective model are curable, while those of the unidirectional model are not. Since the ICC cures the most significant difficulties associated with the collective model, it deserves US support. This paper addresses several of the specific legal, moral, and political controversies that have surfaced in debates over the ICC.

“The Myth of Benign Group Identity: A Critique of Liberal Nationalism,” Polity, vol 30 (Summer 1998), pp. 555-78. Abstract: Some political theorists claim that a nationalism that acknowledges the authority of liberal moral principles can avoid the violent excesses that have given nationalism a bad name. On this view, the cure for nationalist violence is not a rejection of nationalism in all its forms, but the cultivation of liberal nationalism. Drawing on the insights of Hobbes and Locke on the sources of violent conflict, I argue instead that any nationalism – liberal or otherwise – encourages the unjust use of violence. Nationalism is dangerous in any form because it cannot be dissociated from certain attitudes that, even though not violent in themselves, still make violence more likely.

“William Talbott’s Which Rights Should Be Universal?: An Overview and Appreciation,” Human Rights and Human Welfare, vol. 7 (2007): 68-71.

“Freedom’s Reach,” a review essay of Judith Lynn Failer, Who Qualifies for Rights?, Clarissa Rile Hayward, De-facing Power, and Karen Struening, New Family Values, Political Theory, vol. 32 (December 2004): pp. 868-76.

“Collective Memory and the Law,” a review essay of Lawrence Douglas, The Memory of Judgment, and Emilios Christodoluidis and Scott Veitch, eds., Lethe’s Law, Punishment and Society, vol 5 (April 2003): pp. 226-32.

“Human Rights and Civic Education,” in Oto Luthar, Keith A. McLeod, and Mitja Zagar, eds., Liberal Democracy, Citizenship and Education, Oakville, Ontario: Mosaic Press, 2001, pp. 32-45.

“The Incrementalist Argument for a Strong Duty to Prevent Suffering,” Journal of Social Philosophy, vol. 28, no. 1 (Spring 1997): pp. 5-22.

“The Moral Asymmetry of Happiness and Suffering,” The Southern Journal of Philosophy, vol. 34, no. 3 (Fall 1996): pp. 317-38.

Editorials, Media Articles, and Blogposts

“Libertarian Insights, Errors, and Calamities,” Balkinization, November 16, 2022

“NATO, Putin, and Ukraine,” Lawyers, Guns, and Money and The Duck of Minerva, March 7, 2022

“The DSA International Committee Is Very Wrong on Ukraine,” Lawyers, Guns, and Money, February 14, 2022

“Tulsi Gabbard’s Record on Syria Is Not Really Anti-War,” Lawyers, Guns, and Money, January 16, 2019

“Kavanaugh and the Question of Torture,” Lawyers, Guns, and Money, September 18, 2018.

“Brett Kavanaugh and the Risk of a Return to Torture,” Just Security, August 10, 2018; republished as “Brett Kavanaugh Could Raise the Risk That America Will Torture Again,” Slate, August 10, 2018

“The Nation, Syria, and the Truth About Chemical Weapons,” Lawyers, Guns, and Money, April 26, 2018

“Guantanamo Bay a Shameful Chapter in U.S. History,” Everett Daily Herald, August 4, 2013

“U.S. Courts Reject Accountability for Torture,” University of Washington Center for Human Rights, Annual Report 2011-12.

“The Impossibility of Predicting Future Actions of Guantánamo Bay Detainees,” Seattle Times, July 10, 2011

“Mukasey’s Take on Torture Requires Senate to Vote No,” Madison Capital Times, October 26, 2007.

“Without Prison Rules, We Wage Terror,” Tacoma News Tribune, September 14, 2006.

“Roberts’ Ruling on Suspect Troubling,” Seattle Post-Intelligencer, September 28, 2005.

“Nation Doesn’t Need an Attorney General Who Cleared Path for Torture,” co-authored with Darius Rejali, Seattle Times, December 17, 2004.

“The US Shouldn’t Fear International Criminal Court,” Seattle Times, January 3, 2003.