The practice of international law: a theoretical analysis.
Alfred North Whitehead
Out of the conjunction of activities and men around the law-jobs there arise the crafts of law, and so the craftsmen. Advocacy, counseling, judging, law-making, administering--these are the major grouping of the law-crafts.... At the present juncture, the fresh study of these crafts and of the manner of their best doing is one of the major needs of jurisprudence.
The academic literature on the International Criminal Court (ICC) has been burgeoning for the past fifteen years, since the delegates of 160 states and scores of nongovernmental organizations assembled at the so-called Rome Conference in 1998. In the decade since the establishment of the ICC, in 2003, at its current Voorburg site in The Hague, an equally important set of writings has added to the already-tremendous burden facing any researcher seeking to comprehend the workings of international criminal law. As a consequence of the gradually expanding role of the ICC in international politics, a steadily growing number of filings and decisions, including the first judgment, has begun to coalesce into a jurisprudential library that only the most ardent observers stand any chance of ever mastering in all of its technical and substantive complexity. Whereas most scholars are liable to ensnare themselves in the maze of practice, most practitioners are prone to lose track of the latest contributions to scholarship. The developing intellectual risk, to borrow from Alfred North Whitehead, is that most of those who are theoretically imaginative about the
ICC have but slight experience, and most of those who are experienced with its operation have but feeble theoretical imaginations.
In an effort to ward off the twin dangers of "imagination without knowledge" and "knowledge without imagination" in the study of international law, I provide theoretical tools designed to enable the advanced study of practices of international criminal law. By identifying empirically--and analyzing theoretically---a whole array of such everyday practices of the ICC, the symposium issue this article frames is designed to bring the logic of practices to the forefront of knowledge production in the study of international law.' It is geared toward building an intellectual foundation on which scholars and practitioners can deliberate more fruitful ways of engaging each other's very different lifeworlds than currently exist.
By taking practices seriously in the study of international law, I seek to accomplish three objectives. First, I hope to draw attention to the fact that the ICC, like most other international courts, is not a black box. Although this insight is hardly revolutionary, the bulk of existing scholarship in International Law (IL) and International Relations (IR) alike has failed, in assessments of the effectiveness of the permanent international court, to factor in the causal and constitutive significance of institutional and organizational facets of bureaucratic life, whether they manifest themselves formally or informally. (4) To be sure, I am not suggesting that the international politics of adjudication play no role in the determination of judicial outcomes in the international system. In the case of the ICC in particular, the preferences and strategies of states--and also of nonstate actors--have had a considerable effect on the initiation, nature, funding, progression, and outcomes of international legal efforts addressed toward the punishment of international crimes. From the UN Security Council to the Assembly of States Parties to the informal group of diplomats known as "friends of the court," governmental representatives have exercised power-- sometimes successfully, sometimes not--over the operation of the ICC during the first decade of its operation. (5) The complementarity regime governing the operation of the ICC further underscores the considerable leverage of states in the pursuit of international justice. (6)
And yet it would be analytically shortsighted to ignore the inner workings of international courts. As the contributors to this issue make clear, what goes on inside the ICC is of immediate relevance for making sense of the development and outcomes of international adjudication. I suggest that international courts such as the ICC can be profitably studied as both bureaucracies with varying degrees of autonomy--and occasionally even power--and agents controlled by principals, specifically the States Parties. (7) Seeing that the latter perspective has dominated the study of international courts, (8) I make a case for a complementary approach, namely one that places the agent in the foreground of the analysis, and places the principals directing the agent in the background. Once at the center of the analysis, the agency of international courts requires careful unpacking. Whether from the vantage point of practice theory (9) or otherwise, the contributors to this issue engage in such an unpacking, collectively attempting to disaggregate the first permanent international criminal court by scrutinizing various socially meaningful or otherwise significant aspects of its everyday life. When considered in conjunction, these analytic narratives enable us to paint a more nuanced picture than currently exists of one of the most innovative--and contested--international organizations ever created.
Second, and more broadly, I seek to chart a path in-between objectivism and subjectivism when it comes to making sense of the practice of international law. All too often, accounts of international organizations veer toward one or the other of these analytical extremes. As Matthew Eagleton-Pierce rightly points out,
[O]jectivist accounts, such as those produced in the rational actor tradition, often project images of agents engaged in purposeful calculation when it may be more accurate to define their behaviours as experimental or non-intentional. At the same time, purely subjective accounts also have problems, such as often over-emphasising the individual as a category of analysis to the expense of groups and structures. (10)
Likewise the study of the ICC is hampered by an artificial divide between IR and IL accounts of the international organization's operation. More often than not, IR accounts are objectivist in the sense just described. Whether explicitly or implicitly, the preferences of collective agents (for example, the ICC, the Office of the Prosecutor, or judges) are taken as a given (that is, exogenous) rather than as the product of institutional dynamics (that is, endogenous) and thus not separable from them. (11) IL accounts, by contrast, are often so preoccupied with the technical minutiae of prosecution and adjudication in The Hague that the structured contingency of individual action is not noticed, let alone studied. (12)
Third, I am hoping to inspire an interpretive turn in the study of practices in international law. On the foundation of my own ethnographic work on the ICC, and inspired by Bourdieu's indefatigable commitment to ground-level empirical research on social practices in nonlegal domains, I am keen to alter the ratio of field research to desk research in the study of international law, in which both IL and IR scholars have arguably been rather too content with observing international adjudication from afar, with predictable consequences for the depth and subtlety of resultant observations.
The remainder of the article is organized into six parts. In part II, I consider the significance of practice theory for the study of international law. I make a case for a practice turn in IL by situating the methodological approach in the context of alternative approaches for the analysis of international legal phenomena. In part III, I set out the conceptual parameters for the study of practices in international law. I introduce key attributes regularly associated with practice-based reasoning in the social sciences. I offer an initial, simplifying account of what practices are and how they work. With this theoretical baseline in place, I advance a working definition of social practices that is usable for the study of international law. In part IV, I take a step back and introduce more complexity. I present an overview of noteworthy advances in classic and contemporary practice theory in order to accomplish two goals: first, to show that practice-based reasoning has a long pedigree such that it ultimately cannot--and therefore should not--be reduced to one integrated account of what practices are and how they work and, second, to showcase the considerably diverse intellectual oeuvre that is available for adoption and reconfiguration by entrepreneurial IL and IR scholars intrigued to think more theoretically about the many visible--and hidden--practices that constitute international law. In part V I demonstrate the significance of studying practices, as defined in part III, with particular reference to empirical scholarship from IR and IL respectively. In a first step, I use the example of the macrophenomenon of diplomacy to illustrate the importance of taking the logic of practices as seriously as other logics of social action. I then complement the discussion, again by way of example, with IL scholarship on the practice of legality (which is representative of an international practice) in the international system and on the practice of human rights at the World Bank (which is representative of what I call an organizational practice). Against the background of this necessarily abbreviated reading of the existing literature, I use part VI to advance methodological guidelines for the study of practices in international law. With specific reference to the broad universe of practices pertaining to the operation of the ICC, I delineate concrete strategies of inquiry. I illustrate the utility of these methodological guidelines by drawing selectively on the contributions to this issue of Law and Contemporary Problems. The international legal practices that I will discuss encompass both international practices and organizational practices, and thus exemplify the application of practice theory at both the micro- and macrolevel of social analysis. I conclude in part VII, and consider implications for the practice of international law.
THE SIGNIFICANCE OF PRACTICES
The dearth of institutionalist scholarship on the ICC, which I bemoan in this article, is not altogether surprising. For neither graduate school nor law school, with a few notable exceptions, prepare Ph.D. or J.D. students for what international courts are really like. (13) In IL, a variant of what social scientists would call "old institutionalism" continues to hold sway. Its prevalence vitiates against the kind of analytically sophisticated empirical scholarship that is lacking in, but that would immeasurably advance, the study of international law, and in particular the study of its practice. The vast majority of courses in law schools on international criminal law (ICL), to the extent that they are more than mere survey classes, are doctrine-driven and jurisprudence-heavy. By and large, this is a good thing, because a deep familiarity with the tangible, everyday products of international law is a sine qua non of both leading IL scholarship and practice--although most IR scholars strain to appreciate this.
This doctrinal and jurisprudential immersion often comes, however, at the expense of a more holistic and more rigorous study of international law, especially of ICL. There, little attention has thus far been paid to questions of institutional design, institutional development, and institutional effects, that is, analytical questions around which a considerable chunk of scholarship in the social sciences, and especially in political science, has revolved in the past thirty years, whether in the subfields of American politics, comparative politics, or IR. (14) I put it thus, several years ago, in a review of William Schabas's important yet rather conventional volume on adjudication in ICL, The UN International Criminal Tribunals:
International legal scholarship is ignoring, at it own peril, the significance of qualitative research for the study of international criminal courts and tribunals. It is crucial to appreciate in this context that the kinds of ideographic reasoning at which the social sciences excel are qualitatively different from--and more sophisticated than--the descriptive (although often technically compelling) accounts of international legal institutions, processes, and outcomes typically produced by international lawyers. This is so because international legal scholarship continues to be dominated, in the words of Jack Goldsmith and Eric Posner, by an improbable combination of doctrinalism and idealism.
To combat both doctrinalism and idealism, a turn to practice theory may be useful. For the vast majority of international legal scholarship is reminiscent of the old institutionalism in law and the social sciences. That approach (now virtually extinct in the social sciences) consisted primarily of detailed configurative studies of different institutional (administrative, legal, and political) structures. "This work," according to Kathleen Thelen and Sven Steinmo, "was often deeply normative, and the little comparative 'analysis' then existing largely entailed the juxtaposed descriptions of different institutional configurations in different countries, comparing and contrasting. This approach did not encourage the development of intermediate-level categories and concepts that would facilitate truly comparative research and advance explanatory theory." (16)
In the early 1980s, this approach, which grew out of the public-law tradition, was beginning to give way to a "new institutionalism," first in economics (pioneered by Nobel Laureate Douglass North), then in sociology and political science. (17) In contrast to the behavioralism of the 1960s and 1970s, when institutions were viewed as epiphenomenal, that is, as not more than the sum of individual-level properties, this new institutionalist movement was built around a series of interlocking ideas:
The ideas deemphasize the dependence of the polity on society in favor of an interdependence between relatively autonomous social and political institutions; they deemphasize the simple primacy of micro processes and efficient histories in favor of relatively complex processes and historical inefficiency; they deemphasize metaphors of choice and allocative outcomes in favor of other logics of action and the centrality of meaning and symbolic action. (18)
What is the significance of any of this for the study of international criminal courts and tribunals? Let me make the connections clear. The International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), to name but a few, are organizations (just like the U.S. Treasury, firms, or rebel movements). Thus, they can be studied as such. The very same questions about institutional design, choice, and development that we have deemed worthy of investigation in the domestic context (and in the context of such supranational organizations as the North Atlantic Treaty Organization (NATO) or the European Union (19)) can be profitably explored in The Hague, Arusha, and Freetown. The next generation of international legal scholars studying international criminal courts and tribunals must "decenter" these international organizations--that is, they must analyze the multiple ways in which the ICTY, ICTR, SCSL, or any other such institution is produced, reproduced, and reconfigured as a result of the particular and contingent beliefs, preferences, and strategies of the individuals (as well as collectivities) acting within them as well as upon them.
In IR. by contrast, old institutionalism was banished in the early 1980s, when it also began to disappear in other subfields of political science as well as in the disciplines of economics and sociology. Yet the relative neglect of the inner workings of international courts in general and of the ICC in particular is surprising nevertheless, especially because IR scholars in other contexts successfully disaggregated the bureaucracies of international organizations. (20)
These important advances notwithstanding, still largely missing from the empirical turn in international legal scholarship are treatments of international courts as bureaucracies. More specifically lacking are studies that focus, to invoke Karl Llewellyn, on the "law-crafts" of international law. (21) The focus on everyday practices of the ICC that I promote in this article is one of several ways of deepening--and broadening--the empirical turn in international legal scholarship. It is noteworthy because it can be used to foreground aspects of international law not commonly subjected to analytic scrutiny. I begin this article from the premise that a considerable portion of what international lawyers and other actors contributing to the making of international criminal law do is not the result of conscious deliberation or thoughtful reflection. Rather, I assume, with Vincent Pouliot, that "practices are the result of inarticulate, practical knowledge that makes what is to be done appear 'self-evident' or commonsensical. This is the logic of practicality, a fundamental feature of social life that is often overlooked by social scientists." (22)
This omission is particularly glaring in the domain of international law. Despite a veritable cottage industry of quantitative scholarship on the determinants and effects of international law emanating from the social sciences, the majority of scholars, most of whom are inexorably embedded in the knowledge structures of IR, have shown a considerable disregard for the really existing worlds of international law. In addition to the "widespread ignorance of legal theory and epistemology among political science and IR scholars," recently diagnosed by Jeffrey Dunoff and Mark Pollack, (23) most social scientists betray a very weak understanding of how international law really works. By opening the black box of the ICC, which most IR scholars (and also many IL scholars) continue to treat as if it were an undifferentiated whole, the contributors to this issue seek to help close the considerable methodological gap that still divides the disciplinary approaches of IR and IL scholarship. This is more necessary than ever, for, if we believe Dunoff and Pollack, the much-touted rapprochement between the two disciplinary subfields that Kenneth Abbott, Anne-Marie Slaughter, and others envisaged has not been as harmonious as many had hoped it would be when it commenced some twenty years ago:
On the IR side, caricature and ignorance of international legal scholarship is, if anything, more widespread. It appears that many political scientists are concerned that legal scholarship is overtly normative and fails to generate predictive, testable hypotheses; is highly formalistic, overly technical, and inaccessible to those who lack legal training; and ignores issues of fundamental interest to IR scholars, such as the role of power asymmetries in producing international outcomes." (24)
Dunoff and Pollack might have added that many IR scholars also hold an outdated view of contemporary international law as practice. For in addition to regularly downplaying the explanatory significance of IL approaches to the study of international law, IR scholars have but a scant understanding of what international legal practitioners actually do on a daily basis. Unlike most scholars of comparative politics who have an intimate understanding of their research sites, IR scholars of international law have tended to stay well clear of fieldwork. Analysts who study international legal actors, institutions, organizations, and processes on the ground---where things are considerably more complex than they appear from a few thousand miles away--are rare. As a result, many IR scholars have a very simplistic sense of what makes international law hang together. International legal goings-on are regularly reduced to factors that can be reflectively isolated. By this I mean that the vast majority of IR scholars gloss over explanatory factors that cannot be objectively studied. (25)
In recent years, Yves Dezalay and a number of largely Europe-based scholars from across law and the social sciences have begun to pay theoretical attention to the practice of international law. (26) Unfortunately, the bulk of this scholarship has been centered on the process of legal integration in Europe. (27) It remains for the general approach of Dezalay and others to make inroads in the study of ICL. In this article I make a foray into this unchartered terrain.
THE LOGIC OF PRACTICES
"Practice theory"--by which I mean the entire universe of perspectives that have sought, since the late 1970s, to incorporate practice-based reasoning into social theory, and more recently into legal theory--defies easy articulation. Though the term practice theory is widely used, it would be more accurate to speak of practice theories, in the plural. For one is hard-pressed to extract from the many contending perspectives on the nature and logic of practices easily comprehensible tenets that all of the scholars who have contributed to theorizing the phenomenon would readily accept, although I will attempt to do so nonetheless. I begin by taking a brief look at the intellectual juncture at which practice theory--at least in its contemporary variant--emerged, and in response to which rival strands of thought. Doing so is useful in order to appreciate what is at stake in adopting--or rejecting--a focus on practices in international law.
In the social sciences, theorists like Pierre Bourdieu, Anthony Giddens, and Marshall Sahlins, in particular, responded to the intellectual supremacy of what Sherry Ortner has usefully described as "theories of 'constraint.'" (28) Most influential among these theories of constraint were interpretive (or symbolic) anthropology (invented by Clifford Geertz), Marxist political economy (advocated by Eric Wolf), and French structuralism (by Claude Levi-Strauss). (29) Within anthropology in the 1970s, the advocates of these divergent intellectual responses to the previously widespread dogma of functionalism all espoused the ontological priority of structures over agents. This is to say, they all believed that the behavior of individuals and collectivities is ultimately reducible to the manifold social structures--from kinship to families to bureaucracies to beliefs to world systems--in which agents are embedded. Ortner puts it thus:
Human behavior was shaped, molded, ordered, and defined by external social and cultural forces and formations: by culture, by mental structures, by capitalism.... But a purely constraint-based theory, without attention to either human agency or to the processes that produce and reproduce those constraints--social practices--was coming to seem increasingly problematic. (30)
In sociology, Erving Goffman, Harold Garfinkel, and others, drawing on ideas of Max Weber, George Mead, and Herbert Blumer, introduced what became known as "symbolic interactionism" and (subsequently) "ethnomethodology" into the debate in order to counter what they considered the excessive influence of structuralism in social theory. (31) Putting agents front and center, the advocates of these relatively marginal approaches were preoccupied with the microdynamics of social interaction. By erring on the side of agents, these advocates often let structures fall entirely by the wayside. The result was a methodological individualism that was as inadequate in capturing social complexity as the methodological structuralism that symbolic interactionism had sought to replace. (32) It is this intellectual logjam that practice theorists (as they later came to be known) set out to break. (33)
Although there is considerable variation among practice-based theories, what unites all practice theorists, self-declared and otherwise, are two important intellectual commitments, as perceptively identified by David Stern: first, a commitment to "holism about meaning" and, second, an "emphasis on the importance of close attention to particular practices and the context within which they are located." (34) At the inception of practice theory, three particular works were marshaled in support of the discipline's twin commitments. Together the works encapsulated much of practice-based theorizing in the 1970s. Two of them were sociological, the third anthropological, in disciplinary orientation. Arguably the most important was Bourdieu's Outline of a Theory of Practice, followed by Giddens's Central Problems of Social Theory and Sahlins's Historical Metaphors and Mythical Realities. (35) Each in its own way, these works
set out to conceptualize the articulations between the practices of social actors 'on the ground' and the big 'structures' and 'systems' that both constrain those practices and yet are ultimately susceptible to being transformed by them. They accomplished this by arguing, in different ways, for the dialectical, rather than oppositional relationship between the structural constraints of society and culture on the one hand and the 'practices'--the new term was important--of social actors on the other. They argued as well that 'objectivist' perspectives (like Wolf's political economy) and 'subjectivist' perspectives (like Geertz's interpretive anthropology) were not opposed ways of doing social science but represented 'moments' in a larger project of attempting to understand the dialectics of social life. (36)
By offering a promising way to transcend the so-called agent-structure problem in social theory--that is, the long-standing, unresolved question of whether agents or structures are ontologically prior when it comes to explaining the social world around us--Bourdieu, Giddens, Sahlins, and the practice-oriented scholarship they inspired "restored the actor to the social process without losing sight of the larger structures that constrain (but also enable) social action." (37)
Against this background, it is no wonder that practice theory is gradually finding adherents among IR and (though more rarely) IL scholars. Largely inspired by Alexander Wendt's seminal 1987 article on the agent-structure problem in the study of international politics, (38) IR theorists in the 1990s spilled much ink on questions of epistemology and ontology and the relation of each to explanation and understanding in their field of study. (39) Because empirical scholarship on questions related to the constitution (to borrow Giddens's term) of international phenomena is now more common (and sophisticated) than twenty years ago, the grounded approach first advocated by practice theorists for making sense of domestic goings-on is increasingly being adapted for the study of the international system. In IR, this tendency is illustrated, most recently, by work on so-called international practices such as diplomacy and deterrence. (40) The introduction of practice theory into IL can be traced back to Yves Dezalay, whose work on international commercial arbitration and related international phenomena, often undertaken in collaboration with Bryant Garth, has, for the last twenty years, endeavored to inspire a similar "practice turn" in the study of foreign, comparative, and international law. (41) More recently, Antoine Vauchez and others have taken up the Bourdieusian mantle and contributed to spreading practice-based scholarship on international legal phenomena, with particular reference to the legal integration of the European Union and related developments. (42) Entirely missing from this fledgling IL trend, however, is the study of ICL, where practice theory has made no discernable inroads. But before I turn to ICL, I will elaborate on the essentials of practice theory and then reconstruct its genealogy--all for the purpose of providing the intellectual building blocks for the sophisticated, and diverse, study of practices in international law.
A. What Are Practices?
The nature of practices, like that of most categories of analysis, is contested. Alternative conceptions abound. Notwithstanding this richness in conceptual imagination, the essence of practices is stable across the multitude of existing definitions as almost all conceptions of practices, and the theories constructed around them,
foreground the importance of activity, performance, and work in the creation and perpetuation of all aspects of social life. Practice approaches are fundamentally processual and tend to see the world as an ongoing routinized and recurrent accomplishment. This applies even to the most durable aspect of social life--what scholars call social structures. Family, authority, institutions, and organizations are all kept in existence through the recurrent performance of material activities, and to a large extent they only exist as long as those activities are performed. (43)
But what exactly are practices? Consider the following four contending conceptions from the late twentieth century: Michael Oakeshott's procedural conception, Alasdair MacIntyre's cultural conception, Theodore Schatzki's agentic conception, and Pierre Bourdieu's "sobjectivist" conception. Although in the present analysis I very deliberately simplify the nature of practices, in part IV I take a step back and, also very deliberately, introduce uncertainty into the discussion. Hopefully, this additional layer of complexity will be useful when I eventually turn, in part VI, to contemplating methodological guidelines for the study of practices in international law. The variety of theoretical approaches will serve, in part IV and also in the immediate analysis, as a useful reminder that there is more than one way of defining--and thus of studying--the practice of international law.
To begin with, the philosopher Michael Oakeshott as part of advancing his theory of action referred to a practice as
a set of considerations, manners, uses, observances, customs, standards, canons, maxims, principles, rules, and offices specifying useful procedures or denoting obligations or duties which relate to human actions and utterances. It is a prudential or an authoritative adverbial qualification of choices and performances, more or less complicated, in which conduct is understood in terms of a procedure. (44)
As compelling--and recognizable from our everyday lives--as this definition of a singular practice is, it falls shorts in key respects. Most important, because it is excessively steeped in methodological individualism, Oakeshott's take on practice glosses over the feedback loop--that is, the mutually constitutive relationship--that usually exists between agents and the structures surrounding them. (45) Notably, he does so by conceptually separating practices from the actions they are said to govern. As one critic has it,
Oakeshott sunders them because, as a good conservative, he wants the identity of action to derive solely from features of individuals. This he achieves by tethering what someone does to his or her understandings and motives. Once, however, the identity of action is pegged to the individual, practices (i.e., sociality) can only pertain to the how of action. (46)
One remedy adopted by practice theorists has been to make sociality a defining attribute of practice. For example, Alasdair MacIntyre, also arguing from philosophy, defines practices as
coherent and complex form[s] of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended. (47)
Unpacking this abstract definition, one is left with three defining attributes that a form of activity must possess in order to justify calling it a practice on this account: It must be complex, it has to have internal goods, and it has to be enacted in the pursuit of standards of certain societal values, such as excellence.
In this same analysis, MacIntyre gives a series of real-world examples to illustrate his definition:
Tic-tac-toe is not an example of a practice in this sense, nor is throwing a football with skill; but the game of football is, and so is chess. Bricklaying is not a practice; architecture is. Planting turnips is not a practice; farming is. So are the enquiries of physics, chemistry and biology, and so is the work of the historian, and so are painting and music. (48)
The definitional requirement of "internal goods" is best illustrated by reference to one of MacIntyre's preferred examples: the practice of chess. Internal goods are the (more or less) unique products derived from the act of playing chess, for example, the attainment of particular analytical skills or the ability to reason strategically, as illustrated by the ability to predict an opponent's moves. External goods are products that the practice of chess may well help produce--money, power, fame--but that are not uniquely related to the activity. (49)
For MacIntyre, practices are fairly stable, long-lasting phenomena related to what he calls "living tradition." As he writes,
[T]he history of a practice in our time is generally and characteristically embedded in and made intelligible in terms of the larger and longer history of the tradition through which the practice in its present form was conveyed to us; the history of each of our own lives is generally and characteristically embedded in and made intelligible in terms of the larger and longer histories of a number of traditions. (50)
MacIntyre, unlike other theorists who have attempted to capture and define the nature of practices in our lives, has a rather optimistic outlook. In his moral philosophy, being part of a tradition (and, by implication, its practices) is an important ingredient of the good life. As a consequence, practices, for MacIntyre, tend to be marked by coherence and cooperation. This is an assumption not shared by all practice theorists--a difference that manifests itself conceptually. Take, for example, the definition of practice by Theodore Schatzki, to which I now turn.
For Schatzki, a practice refers to "a temporally evolving, open-ended set of doings and sayings" constituted and maintained by "practical understandings, rules, teleoaffective structures, and general understandings." (51) This definition offers an analytical, rather than normative, take on practices. What is more, unlike his predecessors, Schatzki, by way of the definitional qualifier "open-ended," emphasizes that practices "entail irregularities and unexpected elements." (52) It follows from this that practices, thus understood, are not an inherently desirable logic of social action, as the definitional accounts of Oakeshott and MacIntyre would have us believe. Whether discrete actions combine to a unified practice in Schatzki's account is determined solely by the presence or absence of four mechanisms--"practical understandings, rules, teleoaffective structures, and general understandings," (53) The worthiness or meaningfulness or effectiveness of practices is an entirely separate, empirical question.
Schatzki has made a valuable contribution to specifying the nature of practices by suggesting that the nexus between doings and sayings is brought about and shaped by the interplay among understandings, procedures, and engagements that vary independently from one another depending on context, and that determine the kinds of performances that some theorists say are part and parcel of all forms of "praxis," by which is meant the world of human action (in contrast to the world of human reflection). One implication of Schatzki's concretization of the nature of practices is that, on his conception, "practices can easily overlap and the same doing can be part of two practices." (54) This is of immediate relevance for understanding the practice of international law because it opens up an analytical space in which multiple interpretations of the social meaning of legal behavior can coexist. Methodologically, this means that a practitioner's interpretation of "doing" in an applied international legal setting--such as the ICC--could be entirely compatible with an analyst's conflicting interpretation of the same "doing." For example, an explanatory account that holds a particular adjudicative way of doing things to be representative of a bureaucratic practice could be as valid as--and entirely compatible with--an alternative account that points to the same conduct as constituting a stigmatizing practice. (55) It is precisely in this sense, as Davide Nicolini points out, that "authors operating within this tradition [of practice-based reasoning] insist that practices are not just what people do, and that adopting a practice approach is distinctly different from simply providing more accurate, or more detailed or 'thicker' descriptions of people's conduct." (56) To push this agenda, Schatzki distinguishes between "integrative practices" and "dispersed practices." Because the former are easier to understand, let me start with them.
Schatzki defines integrative practices as "the more complex practices found in and constitutive of particular domains of social life. Examples are farming practices, business practices, voting practices, teaching practices, celebration practices, cooking practices, recreational practices, industrial practices, religious practices, and banking practices." (57) For the province of social life with which I am concerned in this article, an example of what Schatzki understands by an integrative practice is the totality of legal practices in domestic politics and international affairs. Dispersed practices, on the other hand, refer to "a set of doings and sayings linked primarily by an understanding they express," according to Schatzki, who further notes that "[e]xamples of dispersed practices are the practices of describing, ordering, following rules, explaining, questioning, reporting, examining, and imagining." (58) Without going into technical detail, what Schatzki's very demanding treatment of the conceptualization of practices affords us is an analytical toolkit with which to begin to dissect the social lives of international law. Regardless of whether we subscribe to his particular theoretical perspective, Schatzki's definitional efforts promise to help with demarcating the boundaries of practices that are integral to the making of international law.
A final author to introduce in this discussion of definitions is Bourdieu, whose practice theory did not convince Schatzki. Schatzki faulted the French sociologist for an excessively structural account centered on the concept of "habitus," a concept that I specify in part IV when I engage in more detail with Bourdieu's influential perspective on the nature and meaning of social practices. Yet Bourdieu is important to briefly introduce here because his conception of what practices are has featured so prominently in recent IR theory. (59) Pouliot not long ago came up with the awkward--yet apt--notion of "sobjectivism" to convey the ontological position taken up by Bourdieu across most of his oeuvre. (60) According to this position, both subjectivism and objectivism are required for making sense of social life. (61) Indeed Bourdieu deemed them "equally indispensable to a science of the social world that cannot be reduced either to a social phenomenology or to a social physics." (62) It is for this reason that, in this preliminary definitional analysis, I speak of Bourdieu's as a sobjective conception of practices. What does this conception entail?
Sidestepping for now the dense theoretical substance of Bourdieu's treatment, it is worth noting that the French sociologist devoted inordinate amounts of space to explicating and fine-tuning his concept of habitus, but neglected almost entirely the careful conceptualization of practices, even though they feature centrally in several of his most important books. Despite this conspicuous gap in Bourdieu's scholarship, we can deduce a definition from his many more general statements, and from some of his empirical work on the topic. At one point, Bourdieu speaks of behavior that is "[objectively 'regulated' and 'regular' without being in any way the product of obedience to rules" and that is "collectively orchestrated without being the product of the organizing action of a conductor." (63) In Bourdieu's language, practices are sometimes referred to, not much more helpfully, as activities or "games" that are played in the context of particular "domains of practice," which he calls "fields." (64)
Alan Warde has remarked that Bourdieu "does not conceive of a practice as a coherent entity and is especially intent on emphasizing the importance of praxis." (65) Linked to this was a strong concern with corporeality, or the bodily dimensions of practices. This focus, influenced by Maurice Merleau-Ponty's Phenomenology of Perception, (66) is more pronounced in Bourdieu's practice theory than in some of the others in existence. Yet Bourdieu was less concerned with capturing the essence of practices definitionally. Arguably, this was owed to his penchant for inductive reasoning, notably his extensive ethnographic work. (67) It stands to reason that he did not want to exclude ex ante from his purview human conduct that may not stand up to a well-crafted definition of practices. Bourdieu may also have been reluctant to advance such a definition because of his--rather paradoxical in light of his theoretical ambition--skepticism toward all efforts at explaining and understanding social practices. As he wrote in The Logic of Practice, "[T]he language of overall resemblance and uncertain abstraction is ... too intellectualist to be able to express a logic that is performed directly in bodily gymnastics, without passing through explicit apprehension of the 'aspects' chosen or rejected." (68) He went on to contemplate the nature of real-world practices (and the related category of rites), pointing to
the fallacy of seeking to contain in concepts a logic that is made to do without concepts; of treating practical manipulations and bodily movements as logical operations; of speaking of analogies and homologies (as one has to in order to understand and explain) when it is simply a matter of practical transfers of incorporated, quasi-postural schemes. (69)
What remains is a conception of practice that, though underspecified, opens up a broader space for empirical exploration than some of the contending definitions. By highlighting the importance of habitus, and the significance of corporeal schemas, Bourdieu's sobjective conception draws our attention to yet another way of talking about social practices.
What practices are taken to be varies across the numerous theorists who have discovered them and across the various theories that have been constructed around them. In this part, I illustrated this theoretical variety and the considerable difficulty associated with capturing the nature of practices. This conceptual challenge, however, should not cause us to dismiss the analytical significance of practices, or to equate practices with mere behavior, as some critics are wont to do. As Andreas Reckwitz writes, "There is a certain danger of trivializing practice theory. At first sight, its approach might seem relatively close to everyday talking about 'agents' and their behaviour. In fact, this is not the case." (70) Simply put, practices are "body/knowledge/thingscomplexes." (71) What all definitions of practices have in common is the conceptual foregrounding of "non-instrumentalist notions of conduct," as Warde helpfully puts it. (72)
Although theorists who take practices seriously deny that individuals have active agency, by which I mean the capacity to fully determine their own behavior, these theorists do not believe in holism either. "As carriers of a practice," Reckwitz notes, individuals
are neither autonomous [as rationalists assume] nor the judgmental dopes who conform to norms [as constructivists tend to argue]: They understand the world and themselves, and use know-how and motivational knowledge, according to the particular practice [under investigation]. There is a very precise place for the "individual"--as distinguished from the agent--in practice theory. (73)
Because, according to Reckwitz, "there are diverse social practices, and as every agent carries out a multitude of different social practices, the individual is the unique crossing point of practices, of bodily-mental routines." (74) What this means is that practice theory retains the idea of agents (unlike, say, textualism or mentalism), but significantly complexifies this idea, thereby overcoming one of the major shortcomings associated with methodological individualism, namely its crude, automaton-like characterization of really existing individuals.
The preceding discussion juxtaposed a number of the more prominent conceptions of practices currently available. This conceptual variation notwithstanding, it is possible to tease out commonalities. On the foundation of my preliminary concept analysis, I take practices to refer to recurrent and meaningful work activities--social or material--that are performed in a regularized fashion and which have a bearing, whether large or small, on a social phenomenon, in our case, on the operation of international law. I suggest that practices, thus defined, result from the noninstrumental and often spontaneous interplay of doing, saying, and knowing by groups of individuals. Implicit in my definition and qualifier is the assumption that "practices are inherently contingent, materially mediated, and that practice cannot be understood without reference to a specific time, place, and concrete historical context."75 Reckwitz offers further elaboration:
A 'practice' (Praktik) is a routinized type of behaviour which consists of several elements, interconnected to one [an]other: forms of bodily activities, forms of mental activities, 'things' and their use, a background knowledge in the form of understanding, know-how, states of emotion and motivational knowledge. A practice--a way of cooking, of consuming, of working, of investigating, of taking care of oneself or of others, etc.--forms so to speak a 'block' whose existence necessarily depends on the existence and specific interconnectedness of these elements, and which cannot be reduced to any one of these single elements.
For Reckwitz, studying practices means identifying and interpreting the many ways "in which bodies are moved, objects are handled, subjects are treated, things are described and the world is understood." (77) After all, all of these forms of behavior combine to make up what most practice theorists understand by practices.
B. How Do Practices Work?
In the most general sense, practices are "meaning-making, identity-forming, and order-producing." (78) Because this tripartite distinction captures the logic of the vast majority of practice-based approaches to social explanation, I adopt it here to organize this preliminary sketch. I will illustrate its analytical value with passing reference to international law.
Practices are meaning-making in the sense that they generate and disseminate knowledge about the social world. By participating in a practice, individuals become acquainted, for better or worse, with a recurrent pattern of socially recognized behavior. Such participation can bestow purpose on an otherwise mundane everyday activity. In the case of international law, the contribution of an individual to a given practice such as the investigation of international crimes can go a long way toward validating that individual's choice of vocation especially when practices reference the discourses, representations, and other "symbol systems" that are meaningful in the life of the individual in question. This is so, as Wilhelm Dilthey, the influential historian and philosopher observed, because "the parts of a life have a meaning according to their relation to that life, its values and purposes, and according to the place they occupy in it." (79)
But practices in international law are meaning-making in a second sense as well, as Yves Dezalay and Bryant G. Garth have shown in the case of international commercial arbitration:
Lawyers (assuming that the term even has the same meaning in different countries) come from very different national legal traditions and from different parts of the profession (judiciary, academy, [private] practice, government), and they respond to different clients and constituencies.... The abstraction of international law is therefore closely tied to the activities of individuals and groups, who thereby give concrete meaning to the abstraction.
This means that individuals engaged in recurrent performances of a legally relevant practice--such as international commercial arbitration--invariably also give meaning to said practice due to the interests, preferences, norms, and values that they embody and with which, consciously or otherwise, they infuse the activities that constitute the practice. Or, as Bourdieu put it in a foreword to Dezalay's and Garth's important study,
The national members of this new international elite, a noblesse de robe, by exercising their talents in the major transnational entities, humanitarian organizations, or even great legal multinationals, help to bring juridical forms to a higher level of universalization in and by a confrontation of different and at times opposed visions. (81)
The work of Dezalay and Garth is useful for our purposes because it powerfully illustrates the utility of reasoning in terms of a logic of practices. Without delving too deeply into the substance of their rich and nuanced analysis, we learn a considerable deal about the nature and determinants of international commercial arbitration because of their focus on "the people who are recognized as having authority to handle these high-stakes, complicated disputes," and the multiple conflicts among them. (82) Dezalay and Garth, for example, find that the kind of international justice that is meted out in the context of competition for transnational business disputes is, in key respects, a function of social cleavages that exist within the field of international commercial arbitration. It appears that the path of socialization that arbitrators take on their way into the profession, and the kind of legal setting from which they end up operating, have a considerable effect on the type of arbitration that they pursue as well as the kind of outcome that we can expect from their involvement. (83)
One major battle line, say Dezalay and Garth, revolves around what they call "grand old men" and "technocrats." In the civil-law tradition of continental Europe, the former cast of arbitrators is comprised of eminent professors and high-ranking judges, in the Anglo-American common-law world by senior barristers, Queen's Counsel, and senior partners in U.S.-style law firms. (84) The technocratic set, by contrast, is less exclusive and more sizable, not to mention younger. Its emphasis is not on charisma but on technical competence, notably in the economic analysis of law, as increasingly favored by large international law firms. (85) The emergence of this vocational cleavage about the conduct of arbitration is not only interesting, it began to complicate the settlement of business disputes by way of international arbitration. That is at least what Dezalay and Garth found. (86) But other cleavages mattered as well, they noticed. There was the divide between "academics" and "practitioners." (87) And in a case study of the International Chamber of Commerce of Paris, for example, Dezalay and Garth point out additional cleavages that, on their argument, have a more than random structuring effect on arbitration outcomes, namely the difference between those who continue to see arbitration as a mode of guided settlement (of "auxiliary justice") and those who have come to see it as just another form of litigation. (88) Dezalay and Garth trace the emergence of these contending practices of international commercial arbitration to the mergers and acquisitions of enterprises on the one hand, and to increased anti-trust litigation on the other. Both trends, they claim, created a demand for a new kind of legal knowledge, "that of specialist in taking charge of conflict situations." (89) If we believe Dezalay and Garth, in the administration of disputes, these specialists "consider judicial recourse not as an end in itself but only as an argument and a means of pressure. The negotiators consider judicial recourse as one of the weapons that can be deployed in a conflict that will almost surely end prior to trial." (90) Dezalay and Garth use this example of the rationalization of arbitration practices in international law, in conjunction with many others, to account for the gradual decline of the lex mercatoria, that is, the general principles of international commerce, as the principal structuring device of international commercial arbitration. (91)
Although the empirical veracity of this conclusion need not concern us here, it is immediately apparent that the aforementioned findings, and others like it, were possible only because Dezalay and Garth, drawing on Bourdieu, decided to take seriously the everyday life of international arbitrators, that is, the practice of international law. Unlike so many other legal scholars of international arbitration, they did not assume that practitioners of the law of dispute settlement were identical to one another or were defining and acting on the same self-interests in similar ways, and thus not worthy of theoretical or empirical explication. Instead, they argued, and showed, that it was important to study arbitrators in context, as structurally mediated individuals. The term is mine, not theirs, but it serves to relate their take on international commercial arbitration to the sobjectivist ontology that is germane, as we have seen, to all theories of practice.
Whatever one makes of the practical significance of Dezalay and Garth's findings in the study of international commercial arbitration, it is undeniable that their methodological approach generated insights that neither the discipline of IL, nor the profession of international arbitrators, previously possessed, at least not at the level of systematicity evidenced by Dealing in Virtue.
By homing in, for the first time, on locally situated examples of legal contention over the form and function of international dispute settlement, they were able to substantiate a professional shift in the late twentieth century "toward more procedurally elaborate and factually based approaches" in the conduct of international commercial arbitration, thereby providing "a convincing account of the internal dynamics of this hitherto virtually inaccessible world." (92) Having said that, inasmuch as Dezalay and Garth's work on international commercial arbitration, and more specifically the peculiar social world of arbitrators that they describe in such rich detail, shows the value of a practice-oriented approach to international law, a closer, more ethnographic, exploration of the international legal practices to which they alerted us, would substantially complement their pioneering approach and further deepen IL's understanding of the nature and determinants of the international arbitration of business disputes. For as one reviewer of the book observed, admiringly, "This is an unusual and intriguing book ... because its authors have embarked upon a study based principally upon the development of international commercial arbitration and the practice and practitioners of arbitration without the benefit of any extensive empirical experience of their own upon which to draw." (93) One can only imagine the kind of fine-grained contribution about the practices of international commercial arbitration that an ethnographic immersion might produce.
It is the task of the practice-oriented researcher to unearth all of the aforementioned aspects of meaning-making, successful and otherwise. Or, to paraphrase the historian R. G. Collingwood, the object to be discovered in the study of practices is not the mere activity, but the thought expressed in it. To discover that thought is already to understand a practice's meaning. (94)
Next, practices are identity-forming in the sense that they regularly shape the self-understandings--in whatever direction--of individuals who are engaged in their performance. To return to the example of the international criminal lawyer, continued exposure to, and participation in, the practices of international prosecution or international adjudication may result in a moral identification with the project of international justice (or, alternatively, a rejection thereof). Importantly, this self-identification can work at both the individual and collective levels. Familiarity with bureaucratic practices at, say, the ICC, may foster individual socialization on the part of lawyers and other practitioners. It may lead to an increased (or decreased) identification with the values commonly associated with the permanent international court. As David Roller points out, for example, "At its most ambitious, faith in international criminal law manifests a hope for a new political reality--both in terms of the decisions made by policymakers and in terms of an underlying globally shared cosmopolitan identity." (95) The sustained participation in ICC practices can strengthen--or weaken--this faith, with predictable effects for individual identity formation. But sustained exposure to an international legal way of doing things can also set in motion collective identity formation among states. (96)
Alastair Iain Johnston explored the logic of international socialization in a least likely case, that of China. (97) He found that increasing social interactions in international security institutions by Beijing's diplomats in the post-Mao era led to their becoming more cooperative and willing to self-bind in treaty negotiations over arms control and disarmament. (98) Put differently, the routinization of legalism (and the practices concretely associated with it) can leave a mark on a state's collective identity. I have elsewhere explored the identity-forming consequences of practices of legality in a domestic context. (99) On the international stage, postwar Germany's expanding commitment to international law, which culminated in that country's important role in the negotiations over the Rome Statute of the International Criminal Court, exemplifies, one could say, the identity-forming consequences of practices of legality in an international context.
Of course, the identity-forming consequences of legal practices will not always be inclusive. As several critical IL scholars have shown in the last decade, international legal practices also give rise to exclusionary identities. (100) Consider the principle of extraterritoriality, which formed a pervasive international practice in the expansion of international society in the nineteenth century. The classification of countries like China and Japan, to name but two, as culturally inferior at the time has had long-run consequences for identity formation in the developing world, leading to what Rogers Brubaker and Frederick Cooper termed "external identification," that is, "formalized, codified, objectified systems of categorization developed by powerful, authoritative institutions." (101) External identification courtesy of the practice of extraterritoriality and other imperialist legal practices provoked in some parts of the developing world a century later what Balakrishnan Rajagopal has described as "international law from below," marshaled by agents who defined themselves in opposition to the prevailing international legal order, and who derived a part of their collective identities from nineteenth- and twentieth century practices of international law. (102)
Finally, practices are order-producing. Unlike theoretical accounts of order founded on a commitment to methodological individualism, practice-based accounts insist that social order is the result of more than the mere interaction of self-interested agents.
Practice thinkers usually acknowledge the structuring and coordinating import of agreements, negotiations, and other interactions, as well as the undergirding significance of skills and interpretations. They treat these phenomena, however, as features of or as embedded in practices, hence as subject to or as constitutive of the latter. As a result, interactions, skills, and interpretations determine orders (and are themselves ordered) qua features of practice. Practice approaches also tend to reduce the scope and ordering power of reason. They do this by abandoning the traditional conception of reason as an innate mental faculty and by reconceptualizing it as a practice phenomenon. (103)
On this perspective, practices produce order by facilitating a particular understanding of the world on the part of those agents who participate in it. Order comes about per force of the stable reproduction of socially significant activities. On this account, shared knowledge is an ingredient in the cement of society, enhanced by way of routinization.
From the direct effects of practices, let me briefly turn to their interaction effects. Emanuel Adler and Vincent Pouliot, in a recent attempt to theorize the logic of international practices, have distinguished among four types of relationships that can obtain between or among individual practices. (104) For the purpose of this discussion of order-producing effects of practices, I will only touch on the fourth type of relationship, which they call "subordination." (105) Under this tightest of constellations, practices are arranged in a hierarchical manner. Some practices are said to "anchor" other practices by making them possible. The example that Adler and Pouliot give, and that is of immediate import for the study of international law, is the practice of sovereignty anchoring the practice of diplomacy. (106) Theoretically speaking, "[i]n these hierarchical bundles, one practice may become the dominant form of a set of subordinated practices, which may nonetheless continue to be practiced." (107) With further reference to international law, some might say that subordination has begun to characterize the relationship between the long-standing practice of juridical statehood and the newer practices associated with the "new humanitarianism." If we believe the more optimistic observers of international politics, the doings and sayings that were observable under the banner of the so-called responsibility to protect (R2P) in particular have inaugurated a new hierarchy of international practices. (108) It is worth reiterating here that practices require agents to exist in the first place. Absent any agentic input, practices will have no meaningful effect. As Adler and Pouliot write,
[W]e want to insist that agency is front and center in the interplay of practice, if only because it is practitioners who, ultimately, are the performers. Put in simple terms, the reason why a given bundle of practices follows a particular scenario and not others has less to do with how it fits together--a functional argument--than with how it is fitted together as a result of political struggles. The politics of practice concern the ways in which agents struggle to endow certain practices with political validity and legitimacy. (109)
Yet contrary to Adler and Pouliot's formulation, not every practice follows the logic of political struggle. Some constellations of practices will form for reasons other than contentious politics. Adler and Pouliot's instrumental take on the logic of practices overlooks the spontaneous emergence of routinized ways of acting on the social world. International law is full of such spontaneous practices. This is an important insight in a time when "the politics of international law" are the preferred point of departure for IR scholars, which causes them to neglect a large swath of what international lawyers actually do. Though politics informs a great deal of international law, it does not govern all of it, and certainly not all of the time. It is this latter slice of reality, located at the intersection of the political and the mundane, that deserves closer scrutiny than it has attracted thus far.
In the foregoing, I have provided an overview of the logic of practices as if there were such a thing as a unified practice theory. Maintaining this fiction was necessary in order not to get bogged down in the abstract technicalities that have accompanied the practice turn in contemporary theory.
After these preliminaries, however, a few caveats are in order. Barry Barnes put them so well that there is no need to paraphrase. In deploying practice theory, writes Barnes,
it must be recognized that: (a) no simple either/or contrast can be made between 'theory' and 'practice;' (b) no indefeasible distinction can be made between visible external practices and invisible, internal states; (c) any attempt to give a satisfactory description of social life must make reference to much else besides practice; and (d) practice does not account for its own production and reproduction. (110)
Finally, although this article, and the issue that it frames, make a case for a practice turn in the study of international law, I am nonetheless cognizant of the limitations, and of the potential dangers, associated with doing so. It is therefore worth echoing the cautionary note sounded by Jorg Friedrichs and Friedrich Kratochwil in another effort at theorizing about practically embedded knowledge. Addressing the recent practice turn in IR, they rightly insist that this analytical reorientation "should not preclude more conventional research into power, interest, preferences, and so on." (111) As they put it, "After 'culture' and 'discourse,' we should beware of 'practice' as yet another totalizing ontology that aspires to encompass everything social." (112) In the same vein, my argument for more theoretically sophisticated and empirically grounded scholarship on legal practices in the international system should be understood as a plea for complementing the methodological toolkit currently available to IL and IR scholars of international law, not as a clarion call intended to rally support for supplanting conventional perspectives on international law. My overriding analytical objective is to make the study of international law more diverse--not less so. With a preliminary understanding in place of both what practices are and how they work, we are in a position to delve more deeply into the theory of practices.
THE THEORY OF PRACTICES
Although the focus on practices as discrete units of analysis is relatively new, practice-based ontology has a long pedigree. In this part of the article, I trace the genealogy of practices--and with it the uneven development and mixed fortunes of practice-oriented reasoning in the humanities and social sciences--from ancient to postmodern times. This intellectual history, though necessarily abbreviated, is essential for clarifying what stands to be gained from relating practical knowledge to scientific knowledge in explanations of international legal phenomena such as the adjudication of international crimes at the ICC. Moreover, by exploring the universe of practice-based reasoning across space and time, we gain a better appreciation of the promise--and limits--of alternative routes for bringing practices into the study of international law.
My goal in this part of the article is to encourage the pursuit of all kinds of practice-based research designs by IL and IR scholars, whether they take their cue from Aristotle's idea of phronesis, Heidegger's notion of Dasein, Bourdieu's concept of habitus, or any other member in the "large family of terms ... used more or less interchangeably with 'practices.'" (113) The upshot, then, is this: In order to truly grasp international law, in the Weberian sense of achieving an "empathetic understanding" thereof, we have no choice but to enter, as deeply as we can, the webs of significance that practitioners spin. (114) Being able to choose the methodological and theoretical tools most appropriate to the twin tasks of immersion and disentanglement, in turn, requires comprehensive knowledge of practice theory, broadly conceived. Before turning to the ICC, I will therefore rehearse alternative perspectives for illuminating the reality of international law, all of which fall under the broader rubric of practice theory. All of these practice-oriented approaches are in principle compatible with other theories of social action, yet each would need to be reconfigured for the study of international law. It is here where the potential for analytical innovation lies--in the adaptation of highly abstract, and not infrequently purely philosophical, theories of practice for the empirical study of international legal phenomena.
A. Ancient Perspectives
What Martha Nussbaum has called "the controlling power of reason" dominated the classical Greek approach to knowledge. (115) A quest for certainty, and thus universal principles of life, united much classical thought. In the ancient world, the philosophy of Plato was responsible for establishing a hierarchy of knowledge. In his writings, notably in The Republic, his famous Socratic dialogue, he developed a theory of universal that put a premium on a representational epistemology. It is Plato to whom we owe the widespread belief in the superiority of scientific knowledge because "Plato effectively cast practice, materiality, and performativity beyond, or more precisely below, the scope of theory of knowledge." (116) The assignment of low value to practical knowledge stemmed from the assumption that "good practice" could only be derived from eternal principles. (117) As a consequence, the willingness of most Greek philosophers to accord analytical significance to the particularities of life, including its everyday practices, was very limited. After all, only Plato's philosopher kings were deemed worthy of governing his utopian city of Kallipolis. (118) One exception proved the rule--Aristotle, who, as it turns out, put considerably more stock in the value of practical knowledge than his teacher.
Although it is sometimes said that Aristotle, by distinguishing theory and practice as two distinct epistemic objects, "laid the foundation for the historical demise of practice in the Western tradition," a closer reading of his philosophical oeuvre reveals a thinker who was far more comfortable with different ways of knowing than Plato, to much of the rest of whose belief system he stayed true. (119) In his Nicomachean Ethics, Aristotle established what he called "praxis" as a separate form of knowledge. For him, praxis was a phenomenon without moral qualifications. (120) At the same time, he thought it relevant for making sense of life.
Aristotle's interest in practical knowledge is apparent in his distinction, developed in the Nicomachean Ethics, among three kinds of knowing: episteme, phronesis, and techne. Moving beyond Plato, for whom scientific knowledge (episteme) was the only relevant activity of the human mind, Aristotle thought practical wisdom (phronesis) and what we might call art or craft or skill (techne) were also deserving of philosophical reflection. In his philosophy, "[t]he aim of phronesis is to produce praxis or action informed by knowledgeable valuedriven deliberations; the aim of techne, instrumental rationality, is poiesis, i.e. the creation or production of material or durable artefacts." (121) Aristotle's introduction of praxis as an independent form of knowledge has had a far-reaching effect on the philosophy of knowledge. It gave credence to the argument that theory and practice are incommensurable, that practical knowledge cannot be reduced to theoretical universals. Practical wisdom on Aristotle's account cannot be fully summed up in rules and guides for action without its essential attribute--contingency--becoming lost in the translation. As he put it,
It is obvious that practical wisdom is not deductive scientific understanding (episteme).... [Practical wisdom is of the ultimate and particular, of which there is no scientific understanding, but a kind of perception--not, I mean, ordinary sense-perception of the proper objects of each sense, but the sort of perception by which we grasp that a certain figure is composed in a certain way out of triangles. (122)
In other words, Aristotle, like contemporary practice theorists, took exception to the assumption, as widespread then as now, that all comprehension of the world was rational and intentional. For Aristotle, as Nussbaum noted, "[practical insight is like perceiving in the sense that it is non-inferential, non-deductive; it is, centrally, the ability to recognize, acknowledge, respond to, pick out certain salient features of a complex situation." (123) It follows from this that praxis "cannot even in principle be adequately captured in a system of universal rules--and hence cannot be the subject of episteme, because it has to do with mutability, indeterminacy, and particulars." (124) This rendering in the classic tradition of praxis as a nondeductive and nonrepresentational form of knowledge had profound consequences for modern perspectives on the nature and meanings of social practices.
Bent Flyvbjerg, more than anyone, has popularized the idea of phronesis in the social sciences. Indeed, he has developed, during the last decade or so, a sustained case for a "phronetic social science," which recently culminated in the publication of a policy manifesto of sorts. (125) Flyvbjerg's scholarship, the latest Aristotelian twist in the so-called practice turn in contemporary social theory, is an amalgam of insights from Alasdair MacIntyre, Richard Rorty, Michel Foucault, Clifford Geertz, and a few other twentieth century thinkers who displayed an analytical preference for practical over epistemic knowledge in the study of the social world. "Phronetic research," Flyvbjerg writes,
focuses on practical activity and practical knowledge in everyday situations. It may mean, but is certainly not limited to, a focus on known sociological, ethnographic, and historical phenomena such as "everyday life" and "everyday people." What it always means, however, is a focus on the actual daily practices which constitute a given field of interest, regardless of whether these practices take place on the floor of a stock exchange, a grassroots organization, a hospital, or a local school board. (126)
Or in an international court, for that matter.
At the same time, it is important to note that phronesis, or prudence, in the original Aristotelian formulation was imbued with a deep ethical imperative. Phronesis was a virtue to be striven for, part of the recipe for a good life. It was a moral position, not a methodological one, as it would subsequently become for Bourdieu and other twentieth-century theorists of practice. As Chris Brown usefully reminds us,
Aristotle is not a social scientist in any modern sense of the term, even in a sense of the term that could incorporate Bourdieu; his concern in the Nicomachean Ethics is with the living of a good life rather than with a desire to understand social practices.... [T]he Aristotelian notion of phronesis is always about the exercise of the faculty of reason, which is not the case with Bourdieu's formulation. (127)
B. Modern Perspectives
Modern perspectives are worth contemplating because they allow us to gain greater clarity about the intellectual contributions that can potentially flow from practice-driven knowledge. Importantly, despite the Aristotelian focus on praxis as an inherently valuable--and independent--form of knowledge, it took until the late nineteenth century for practice to be taken seriously again. In the intervening two thousand years, the notion of praxis came to be reinterpreted as merely a dependent category, "the practical application of a-practical, purely theoretical insights." (128) The rise of rationalism, from Galileo to Descartes to Kant, led to the degradation of practical wisdom. Practices were deemed irrelevant to the ontology of being in the world.
A daring philosophical challenge to this mind-over-matter view of the world came in 1845 from Karl Marx, at the time a young revolutionary intent on making a case for the all-important structuring effect of what he called "historical materialism." (129) In The German Ideology, Marx, together with Friedrich Engels, raised the analytical status of the practices of everyday life. Whatever one makes of the ideological content of early and subsequent variants of Marxism, it is undeniable that Marx and Engels created the first modern template for recognizing practices and for subjecting them to rigorous analysis:
The production of ideas, of conceptions, of consciousness, is at first directly interwoven with the material activity and the material intercourse of men, the language of real life.... In direct contrast to German philosophy which descends from heaven to earth, here we ascend from earth to heaven. That is to say, we do not set out from what men say, imagine, conceive, nor from men as narrated, thought of, imagined, conceived, in order to arrive at men in the flesh. We set out from real, active men, and on the basis of their real life-process we demonstrate the development of the ideological reflexes and echoes of this life-process.... Life is not determined by consciousness, but consciousness by life.... As soon as this active life-process is described, history ceases to be a collection of dead facts as it is with the empiricists (themselves still abstract), or an imagined activity of imagined subjects, as with the idealists. Where speculation ends--in real life--there real, positive science begins: the representation of the practical activity, of the practical process of development of men. (130)
This is still a far cry from practice theory in the twenty-first century, but The German Ideology, perhaps more than any other work in the modern world, encouraged and theoretically motivated the analytical preoccupation with ostensibly mundane aspects of social life, thereby bringing back, albeit in a different guise, the discarded idea of praxis. Although Aristotle and Marx were interested with radically different questions of substance, they shared a belief in the epistemological value of practical knowledge. Whereas Aristotle's effort in the ancient world to spread the word about the centrality of practice ultimately failed, "[o]ne enduring legacy of Marx's work is the successful attempt to challenge centuries of Western rationalist and mentalist tradition, and to legitimate real activity, what 'sensuous' people actually do in their everyday life, as an object of consideration and as an explanatory category in [the] social sciences." (131) As a consequence of Marx's attention to the interconnectedness of social life, and especially his unprecedented focus on individuals as corporeal beings, practice in the late nineteenth century was "becoming the ontological principle of being in the world." (132)
Recent interpretations of the phenomenological tradition in Western philosophy, especially of Heidegger's writings, have led observers to conclude that the German's existentialist writings contributed in major ways to the recovery of practice as a worthwhile object of study in the twentieth century. Starting with Friedrich Nietzsche, who is often seen as the main impetus behind the rise of phenomenology, philosophers began to question the contrived separation of theory and practice that had survived virtually intact since Plato's reflections on the topic in the ancient world. Nietzsche, for one, imagined a primordial unity of theory and practice. As one commentator writes, "Nietzsche posited at the centre of the activity of philosophy a 'human, all-too human subject' that is not only a thinking subject but an initiator of action and a centre of feeling." (133) Philosophical inquiries into the nature and boundaries of existence were at the heart of the phenomenological tradition, as encapsulated most famously in Heidegger's 1927 magnum opus, Being and Time. (134) In it, he gave extensive space to the contemplation of what he called Dasein, which translates literally as "there-being" but was meant to draw attention to the activity of existing, the state of being-in-the-world. (135) The intricacies of this notoriously difficult concept need not concern us here. (136) Relevant for our purposes is the fact that Heidegger's interest in the nature of being gave credence to the investigation of practices, or the inner structure of normality. Because the fact of existence is not reducible to any a priori logic, Heidegger sought to come to terms with the essence of what he called "everydayness" (Alltciglichkeit). (137)
He thought the ordinariness of everydayness was essential to try to grasp analytically because it was "constantly overlooked in its ontological significance" and yet inherently inescapable as a constant of our existence. (138) Everydayness, in turn, was comprised of all kinds of social practices.
One's everyday world is meaningfully structured by these practices which can remain untaught and yet which we more or less share in common. Practice therefore implies an individual's social and historical relation to the world, where one's own concrete practices are themselves set up and made meaningful within this wider background system of intelligibility. Mundane everydayness thus becomes the received, yet necessarily indeterminate, cultural manifold within which we are all immersed, and which meaningfully discloses our world by way of our own un-theorized, everyday practical coping strategies. (139)
From this flows the theoretical argument that the totality of practices that make up everydayness is so manifold that it usually escapes our attention, and therewith representation. Practices are seen as nonrepresentational aspects of social life because even though they affect behavior meaningfully, they tend to do so in unreflective ways. Practices are the unarticulated underbelly of our social lives. Because they are part and parcel of our being, we fail to appreciate their centrality.
Even though Heidegger never developed a coherent account of practical knowledge, his philosophical writings were essential to the subsequent development of theories of practice. "[B]y reversing the Cartesian tradition and making the individual subject dependent on a web of social practices, he made it possible for others to develop one."(140)
Ludwig Wittgenstein, the Austrian philosopher of language, had a similar, perhaps an even more important effect on the practice turn in contemporary social theory. As one protagonist of the latter remarked, "Wittgenstein is the philosopher to whom nearly all theorists of practice defer." (141) As might be expected, Wittgenstein's reflections on practice largely emanated from his theory of language. In the process of developing his all-important concept of "language games," he theorized, among other things, the nature of rule following. The substance of Wittgenstein's philosophical writings on the meaning of rules is not of relevance for our discussion. Yet it is important that his larger theoretical effort led him to think of rule following in terms of practical knowledge. As he put it in Philosophical Investigations, a collection of 693 numbered paragraphs of theoretical reflections that were published posthumously in 1953, "'obeying a rule' is a practice. And to think one is obeying a rule is not to obey a rule." (142) He continues, "When I obey a rule, I do not choose. I obey the rule blindly." (143) Wittgenstein introduces the example of a signpost to elucidate the distinction between thinking behavior (what we might call choice) and nonthinking behavior (what he thinks of as practice):
Let me ask this: what has the expression of a rule--say a sign-post--got to do with my actions? What sort of connexion is there here?--Well, perhaps this one: I have been trained to react to this sign in a particular way, and now I do so react to it. But that is only to give a causal connexion; to tell how it has come about that we now go by the sign-post; not what this going-by-the-sign really consists in. On the contrary; I have further indicated that a person goes by a sign-post only in so far as there exists a regular use of sign-posts, a custom. (144)
Or, as Wittgenstein argued elsewhere, "rules leave loopholes open, and the practice has to speak for itself." (145) will draw out the implication of this for the study of international law below, but for now it is important to appreciate that Wittgenstein's concern with the nature and meaning of unreflective behavior, that is, with the nonrational responses of individuals to their surroundings, echoes Aristotle's reflections on praxis, Marx's interest in practical activity, and Heidegger's concept of everydayness. (146)
Like his predecessors, Wittgenstein found it difficult to fully grasp, conceptually and theoretically, the logic of this "inherited background" due to the fact that practical knowledge is just that: practical, not theoretical. (147) Consequently, its unarticulated nature poses limits to representation. This restriction notwithstanding, Wittgenstein was convinced that the rationalist assumption according to which all action was preceded by thought was untenable. The philosopher Charles Taylor has interpreted Wittgenstein's argument thus: "[Mjuch of our intelligent action in the world, sensitive as it usually is to our situation and goals, is carried on unformulated. It flows from an understanding that is largely inarticulate." (148) Like Heidegger before him, Wittgenstein believed that "the source of intelligibility of the world is the average public practices through which alone there can be any understanding at all." (149) Making these practices visible in the area of international law--and encouraging practitioners to reflect on and articulate them--is my purpose in this article. Some philosophers have called for "embodied understandings" of the world around us to facilitate such an interpretive analysis. As Taylor writes,
Background understanding, which underlies our ability to grasp directions and follow rules, is to a large degree embodied.... As long as we think of understanding in the old intellectualist fashion, as residing in thoughts or representations, it is hard to explain how we can know how to follow a rule, or in any way behave rightly, without having the thoughts to justify this behavior as right.... [I]ntellectualism leaves us only with the choice between an understanding that consists of representations and no understanding at all. Embodied understanding provides us with the third alternative we need to make sense of ourselves. At the same time, it allows us to show the connections of this understanding to social practice. My embodied understanding doesn't only exist in me as an individual agent, but also as the coagent of common actions. Thiso is the sense we can give to Wittgenstein's claim that obeying a rule is a practice. (150)
In the context of language, with which Wittgenstein was concerned in his reflections on the logic of rules, Wittgenstein insisted that the meaning of a word could not be determined, at least not fully, by only acquiring the rules according to which the word is used. (151) He argued that there was more to the construction of meaning. "And this additional element is brought out with the help of the concept of practice." (152) On Wittgenstein's argument,
[i]t follows that rules are necessarily related to the established ways of following them. That has as a consequence that rules actually get their identity from the very practices in which they are embedded. As such they can never be fully understood except by those who can successfully perform the practices in question. (153)
Although Wittgenstein was focused on linguistic practices, it is possible to derive valuable insights from his reflections about the relationship between meaning and language for the study of other social practices. Simply put, Wittgenstein sensitized scholars to the possibility that social meaning "cannot be properly conceived of as properties of individual consciousness," as rationalist accounts of the world will have us believe, "and instead should be conceived relationally as the result of the practical activity of sensuous and engaged agents." (154) This perspective has not only ontological but also important methodological implications for the study of practices in international law, as I shall discuss in detail below, most notably because "[i]n all determination of sense there does seem to be involved an element of skill as well as an element of familiarity with the actual phenomena concerned." (155) If we take this to be true, ethnographic research is a sine qua non for exploring the really existing practices of the ICC and other sites of international law. But before I turn to the study of international law, I must sketch in more of the theoretical background necessary for grasping the potential of treating practices as both explananda and explanans--as things to be explained and as things that do the explaining.
The emphasis in Wittgenstein's philosophy of language on the practical activity of "sensuous and engaged agents," as Nicolini put it, reappears in Anthony Giddens's sociology, which set out, in the late 1970s, "to promote a recovery of the subject," without lapsing into subjectivism. (156) In this endeavor, Giddens, too, turned to the idea of practice. Giddens is also worth mentioning because his account of structuration--a particular solution to the so-called agent-structure problem in the social sciences--went on to influence the construction of (important strands of) constructivism in IR theory, which represents the most important paradigmatic development in the subfield since the emergence of neoliberal institutionalism in the late 1970s and the concomitant rise of rationalism as the dominant perspective from which to approach the study of international politics (including international law).
In The Constitution of Society, an abstract treatment of ontology, Giddens presented the building blocks of his theory of structuration." (157) To begin with, in his influential theory Giddens argued against favoring either microlevel or macrolevel analyses of empirical phenomena. Rather than prioritizing agents over structures or structures over agents in explanations, he sketched a third ontological way. (158) Traveling down this route required a belief in the mutual constitution of agents and structures. Through action, so the argument goes, agents produce structures. Although agents, by operating within structures and as a consequence of what Giddens termed "reflexive monitoring," at some point will transform structures, they also are bound by them." (159) This structural embeddedness can enable agents or constrain them. Either way, agents will, on Giddens's argument, draw upon the knowledge--practical and otherwise--that they continuously acquire in the structural context in which they find themselves when they act. (160) Elsewhere, Giddens summarized the essence of his theory as follows: "I argue that neither subject (human agent) nor object ('society,' or social institutions) should be regarded as having primacy. Each is constituted in and through recurrent practices." (161)
Interestingly, Giddens draws a straight line from Marx to Wittgenstein to himself:
I take the significance of Wittgenstein's writings for social theory to consist in the association of language with definite social practices.... I do want to propose that there is a direct continuity between Marx and Wittgenstein in respect of the production and reproduction of society as Praxis. (162)
The operative "theorem" in his theory of structuration is the "duality of structure," by which Giddens means "the essential recursiveness of social life, as constituted in social practices: structure is both medium and outcome of the reproduction of practices. Structure enters simultaneously into the constitution of the agent and social practices, and 'exists' in the generating moments of this constitution." (163)
In contradistinction to other theorists of practice we have encountered thus far, Giddens starts from the premise that agents are both knowledgeable and reflexive. (164) Although these agents behave in part on the basis of tacit, practical knowledge, Giddens thinks them nevertheless capable of formulating aims, contemplating reasons, and monitoring choices. (165) Put differently, although agents are not always self-aware, they sometimes are. "Although human actors usually proceed unhampered in their daily business they are by no means structural dupes.... Giddens' pressing task is that of reversing the conceptual elimination of the subject and promoting its recovery without lapsing into subjectivism." (166) Theodore Schatzki has provided the most lucid--if dense--representation of the place of practices in Giddens's theory of structuration. Schatzki's summary is worth reproducing at length, because it also relates the phenomenon of practices to all of the other moving parts in Giddens's complicated account of the duality of structure in the constitution of society:
[Structures are sets of rules and resources, which are at once the medium in which practices are carried out and the renewed result of their execution. Since practices compose systems, the structural properties of social systems are likewise sets of rules and resources ... that are both medium and result of system practices. What's more, since practices and systems are composed of actions, the ultimate reason why rules and resources structure practices and systems is that actors draw on rules and resources in their interactions. In doing so, they perpetuate the practices of whose structure the rules and resources are elements, and thereby also help reproduce the social system composed by these (and other) practices. (167)
The above sketch of logical entanglements illustrates what recursiveness is all about for Giddens. The recursive reproduction of the social is eased to the extent that practices are routinized, which is the case whenever they are taken for granted: "Routines provide both cognitive economy and anxiety reduction and control." (168)
Central to Giddens's account of the logic of practices are two additional concepts: rules and resources. The former refer to norms and codes that describe the generalized procedures involved in the constitution of practices; the latter connote the material and symbolic capabilities that enable--or disable--opportunities for action. (169) Practices, according to Giddens, "'happen' and are 'made to happen' through the application of resources in the continuity of daily life." (170) In explicating this continuity, Giddens puts a premium on what he calls "practical consciousness," or tacit modes of knowing that come about without reflection, let alone deliberation. As he remarked with reference to linguistic practices,
A double occlusion occurs if the area of practical consciousness is left unexplored, as has characteristically been the case in much research work in sociology. If what actors are able to say about the conditions of their activity appears slight, or unconvincing, the researcher begins to cast about for other factors which determine why they behave as they do. To adopt such a tactic is to blank out the very grounding of human knowledgeability in the continuity of skilfully reproduced practices. It is like supposing that what the speakers of a language can articulate about the rules and procedures they use in speaking or writing is all they "know" about the language. (171)
It is important to appreciate in this context that Giddens, in a major intellectual departure, advanced practice theory by relating representational to nonrepresentational aspects of action, making a case for the co-constitution of action. He insisted that social practices should be viewed as a "conjunction of intended and unintended outcomes of conduct." (172) One consequence of Giddens's self-proclaimed recovery of the subject, in other words, was the creation of a locus for rationality in practice theory. Previous theorists, as we have seen, felt compelled to equate all practical action with a nonrational way of doing things.
What does this understanding of practices have to offer the study of the practice of international law? The problem with Giddens, as many of his critics have pointed out, is his unwillingness or inability (perhaps both) to translate his abstract ideas about the constitution of society into viable research designs for empirical inquiry. (173) As one observer recently noted, "Giddens not only did not put his theory to the test of empirical research, he also failed to provide any exemplification of his approach, and explicitly refrained and even resisted putting his theory into a methodological package for pursuing empirical inquiry." (174) For now it is sufficient to note that the idea of practice is the linchpin in Giddens's theory of structuration, as a result of which it gained greater currency in the social sciences. The notion is so central in fact that Giddens, together with Pierre Bourdieu, is sometimes thought to be a figurehead of a research program known as "social praxeology." (175)
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|Title Annotation:||Introduction through IV. The Theory of Practices B. Modern Perspectives, p. 1-39; The Practices of the International Criminal Court|
|Publication:||Law and Contemporary Problems|
|Date:||Jun 22, 2013|
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