Mediations on the Role and Rule of Law.
The intersection between international law and international relations has become a heavily ventured terrain. Scholars from both fields, it appears, are finally engaging in a systematic discourse about the intractable relationship between law, politics, and ethics at the international level. This is not only reflected in the significant increase in journal articles and books dealing with issues such as global constitutionalism, human rights, and military intervention from a wide range of perspectives; but also, and even more importantly, in the enriched quality of interdisciplinary scholarship. Instead of simply borrowing concepts and arguments without paying much attention to the wider tradition of thought from which they are extracted, a genuine dialogue between international lawyers, normative theorists, and social scientists seems to be under way.
Friedrich Kratochwil has long been a leading figure in the interdisciplinary debate. During a career spanning over three decades, he has profoundly shaped the way we think about the social construction of normative orders and the logic of legal arguments in political and ethical discourse. Perhaps most noteworthy is his seminal text on the use of norms in legal and moral decision making, which has sowed the seeds for much of the constructivist inspired legal scholarship we see today. (1)
Kratochwil's recent book, The Status of Law in World Society, is the product of his lifetime endeavour to theorise the 'social' nature and function of law in global life. Rather than developing an explicit argument, it offers a 'philosophical meditation'; an inquisitive, self-reflective, and insightful intellectual journey in which the author meticulously works through the material. While those preferring a more straightforward style of presentation might find this kind of inquiry confusing, it certainly makes for a fascinating read. He skilfully weaves together legal theory, philosophy, and sociology using metaphors and counterfactual reasoning in order to make his case. That is, urging us to think about law and norms in terms of contingent, dynamic, and contested social practices, rather than manifestations of universalistic and abstract concepts. This may not sound entirely novel to readers familiar with Kratochwil's work, and some of his claims about the socially constructed quality of norms are, indeed, reiterations. That said, while The Status of Law in World Society might not be a pioneering piece of work, its intellectual scope and ambition make it an essential text for anyone interested in the normative organisation of international society.
The first part of the book sets out a sober, practice-based account of law. Kratowchil rejects the notion that law's privileged status as an instrument of social order is inherent in the concept of law itself--we should not take legal rules for granted, or assume that they exist outside of historical context or normative pre-understandings. There is, he argues, no "absolute point that allows us a look at the world 'from nowhere' ... we are always in the 'midst of things'." (2) Law, thus, has to be examined more critically, in particular the settled practices and silent assumptions that underpin the emergence and evolution of normative arrangements and the values that we attach to them. Since such an examination is at odds with both social science and legal positivism, Kratochwil calls for a different interdisciplinary epistemology.
The analytical clarity with which Kratochwil brings together different strands of thought in order to develop a practice-based epistemology is impressive, and his methodological considerations can serve as a blueprint for any researcher seeking to use a socio-legal framework. Kratochwil sanctions the 'scientific' mode of knowledge production according to which a single, unified method can be used to capture discrete phenomena. The 'epistemological-ideal' based on field-independent criteria of 'universal' reasons, he tells us, "cannot make good on its promise for 'incontrovertible' foundations", for it neglects the complexity of social reality. (3) Indeed, modern developments such as legal pluralism, the emergence of soft law, and the dissolution of hard boundaries between domestic legal systems have seriously undermined the traditional account of law as an autonomous and closed system of rules along the lines of Hart, Kelsen and Dworkin. Hence, to make law and its multifaceted nature intelligible, we need to do more than categorising and measuring rules in terms of abstract variables as many interdisciplinary scholars have tried to do. (4) Instead, we should direct our efforts to discern the "agreements on the proper use of concepts." (5)
How, then, should we do this? Here, Kratochwil could have been more forthcoming. He builds on Wittgenstein's language philosophy and the constructivism of Searle, Luckmann and Berger to show that "law proceeds according to the communication model of ordinary language", (6) but he does not tell us how to analyse specific norms and their proper social meanings. Critical constructivists, for example, have developed distinct procedures for recovering 'structures of meaning-in-use' through discourse analysis and interview techniques, (7) and paying attention to them would have helped Kratochwil to concretise his epistemological abstractions.
With this methodology in place, Kratochwil critically reflects on various aspects of the contemporary global normative order, including legal fragmentation and constitutionalization, processes of deformalization, global administrative law, and the impact of human rights discourse on international law-making. While it is impossible in a short review to do justice to the full range of issues and problems he takes on, two interrelated arguments that emerge from these reflections are of particular relevance to contemporary interdisciplinary discussions.
The first concerns the increasing legalisation of modern global politics, exemplified by the growing number legal rules, 'free-standing-regimes' and ad-hoc tribunals. The problem is, according to Kratochwil, that although we have created a wealth of formal rules, principles, and procedures; we have largely failed to institutionalize the political processes that organise the global polity. In the absence of some kind of overarching political structure, "in which policy can be determined, trade-offs can be agreed upon, and broad powers can be delegated"; however, legalisation and dispute settlement mechanisms can only play a limited role. (8) Moreover, since legalisation without political integration promotes rather than counters the fragmentation of the global normative order, "the proliferation of legal norms and dispute resolution is part of the problem, not of its solution." (9)
Second, it is questionable to which extent assertions of universal values and notions of international community provide a feasible basis for a global normative framework within which a fragmented normative order can be integrated. Concepts with universal appeal such as jus cogens and erga omnes, Kratochwil argues, cannot solve the fragmentation problem, since they ignore both the deep-seated value conflicts and the variety of rights and practices that structure social reality. Therefore, norms appealing to the idea of a universal human community and actual state practice tend to "diverge widely and are only tenuously held together by metaphors, conceptual constructs, and narratives, instead of actual settled practices." (10) The crucial question, then, is how to conceptualise norms that appeal to fundamental notions of common humanity, most notably basic human rights. Kratochwil suggests casting them as general principles which are recognised as some form of customary law by all states of the international community. While this would add concreteness and depth to norms of jus cogens and erga omnes, he recognises that this does not solve the underlying normative disagreements, for principles need to be interpreted. Of course, courts at the supranational level can provide some clarification, but "they cannot solve the actual political problems." (11)
One might criticise Kratochwil for not offering solutions to the many intractable problems he discusses, and for throwing up more questions than he answers--but this is a virtue, not a deficiency, of a book that offers a sobering assessment of international law, and a correction to the idea that 'law-making' alone can solve the political dilemmas of the 21st century. In this sense, the book provides us with a challenge--to think more systematically about the mutual constitution of law and politics, the deep-seated value conflicts that underpin institutional structures, and the way in which we design interdisciplinary inquiries.
(1.) Friedrich Kratochwil, Rules, Norms and Decision: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989).
(2.) Kratochwil, The Status of Laxo in World Society: Mediations on the Role and Rule of Law (Cambridge: Cambridge University Press, 2014) at 11 [The Status of Law in World Society],
(3.) Ibid at 19.
(4.) This is a direct critique of the interdisciplinary project of Abbot et al., "The Concept of Legalization", (2000) 54 International Organization 401 who have tried to explain the 'legalization' trend in international relations by assessing rules in terms of three variables: precision, delegation and obligation.
(5.) Kratochwil, The Status of Law in World Society, supra note 2 at 20.
(6.) Ibid at 11.
(7.) See, e.g, Antje Wiener, "Enacting meaning-in-use: Qualitative research on norms and International Relations" (2009) 35:1 Review of International Studies 175.
(8.) Kratochwil, The Status of Law in World Society, supra note 2 at 101.
(10.) Ibid at 167.
(11.) Ibid at 166.
Dennis R. Schmidt, PhD Candidate, School of Government and International Affairs, Durham University.
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|Title Annotation:||The Status of Law in World Society: Mediations on the Role and Rule of Law|
|Author:||Schmidt, Dennis R.|
|Publication:||Journal of International Law & International Relations|
|Article Type:||Book review|
|Date:||Mar 22, 2015|
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