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A Constructivist Theory of International Law?

Published on September 23, 2015        Author: 

Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing (2015) is a rich treatment of challenging terrain. It is difficult to do this excellent book justice by focusing on only some of the many threads that it so skillfully weaves together. Still, I limit my comments to one aspect of the book: the theoretical framework that it develops in the first two chapters.

The book tackles one of the enduring puzzles concerning the operation of international law (IL) in international relations (IR): “How can law make a difference in international relations, where states create legal rules that accord with their interests and normative beliefs, while no central authority enforces those legal rules that do not?” (19)

Janina proposes to solve the puzzle by advancing a theory of IL’s “behavioural relevance” (41), i.e. a theory that explains how IL can make a counterfactual difference by prompting actors to behave differently than they would have done had they simply followed their interests or normative beliefs (349). At different points in the book, Janina stakes out other, even more ambitious, goals. Notably, she asserts that her theory will also show how IL differs from other types of social ordering, thus taking up fellow constructivist Martha Finnemore’s pointed question “Are Legal Norms Distinctive?” (2000). Perhaps most sweepingly, she labels her project a “constructivist theory of international law” (Chapters 1 & 2) and a theory of “what law is” (31, 63). I explore each of these theoretical claims below.

A Theory of IL’s Behavioural Relevance

Janina’s effort to identify IL’s impact must be understood against the backdrop of contemporary IR theory. For Janina, the main strands of IR theory, notwithstanding major differences, share the assumption that states’ motivations for creating and complying with IL are outside of the law (27). What may seem to be inspired by law, is actually driven by prior interests (for realists and rational institutionalists) and/or normative beliefs (for constructivists). For most IR scholars, therefore, law does not provide an independent reason for action – it is “causally dependent” (28).

This relatively dim view of IL is not unique to IR scholarship. It finds a counterpart, for example, in Martti Koskenniemi’s influential account of law’s vacillation between apology (rooted in prior interests) and utopia (rooted in prior normative beliefs). Law is irredeemably indeterminate, argues Koskenniemi, and competent legal arguments can defend either interests or norms. Janina calls this the “epistemic dependence” of IL: its meaning arises through interpretation and, in interpreting IL, states draw on “normative codes” that correspond to their prior interests (utility) or normative beliefs (appropriateness) (28-31).

Janina shares these assumptions about the causal and epistemic dependence of IL (56). But she is not content to see IL “vanish” between the motivational forces on which it depends for its creation and compliance (interests and normative beliefs) and the normative codes on which it depends for its meaning (utility and appropriateness) (31). The central goal of her book is to identify a “third standard for guiding and evaluating behavior” (28), one that resides inside of IL. Legality, she posits, does enable IL to exert independent, and distinctive, influence – it imbues law with the capacity for behavioural relevance. Since that relevance, for the reasons explored above, cannot be demonstrated simply through observation of compliance with IL, she crafts a theory designed to isolate the “counterfactual difference” that can IL make (44). The word “can” is important, as Janina claims only to identify the traits that make it possible for law to have an impact, not that their presence inevitably shapes conduct (60).

Starting from constructivism’s foundational assumption that all reasons for action are socially constructed and changeable, she argues that there is no stable contradiction between normative beliefs and interests (47). She conceives of reasons for action as located on a continuum, running from immediate interests at one end to more remote, abstract reasons at the other (48). Actions motivated by the former are generally perceived as interest driven, and actions motivated by the latter as norm driven. But actors, she notes, tend to be motivated by both, just as their interpretations of IL will typically engage considerations of both utility and appropriateness (48).

These observations lead Janina to an alluringly simple claim: IL’s distinctiveness and the explanation for its behavioural relevance lie in the compromise that it strikes between diverging reasons for action: utility and appropriateness (50-51). IL thereby accommodates, so says Janina, both “situational and long-term or systemic imperatives” (59).

This simple proposition, however, is carried by a complex explanation. Specifically, by providing actors with a “ready compromise between instrumental and principled courses of action,” and by providing detailed guidance about that compromise, IL makes it easier for actors to determine how to act “rightly” (52). This “intellectual effect of law” is then complemented by a “motivational effect” (52), which flows from the proposition that compliance will be visible as aligned with the compromise, while non-compliance will be visible as failure to align. Put differently, IL provides both action guidance (prescribing behavior through its compromise content) and justiciability (defined broadly by Janina as enabling behavior to be assessed). Hence, argues Janina, following the law is not just a matter of appropriateness, but also becomes an interest – more than acting rightly would be in the absence of law. Consequently, law is capable of distinctive behavioural relevance. (I am leaving aside a further plank of Janina’s analysis, focused on IL’s “normative success”)

The proposition that law’s force derives from the compromise it strikes between interests and beliefs seems intuitive and plausible at first glance. It provides an appealing response to starkly dichotomous accounts of IL’s indeterminacy. Janina is able both to acknowledge that IL is “structurally indeterminate” (due to its dependence on prior motivations) (56), and to show that what she calls the “contingent determinacy” of law’s inherent compromise provides “a measure of a rule’s ability to resist interpretation on behalf of only either instrumental or principled considerations” (58).

What remains underexplored, however, is whether the compromise quality that Janina ascribes to IL actually is as characteristic of law as she claims. Can we simply assume that all IL mediates between interests and beliefs? Janina seems to suggest the answer is yes. If law constantly prevented actors from pursuing immediate situational imperatives, she reasons, it would be disregarded. At the same time, law must express an ideal of how actors want to live together (50). That certainly sounds like common sense. However, the book’s focus on international humanitarian law (IHL) allows Janina to sidestep the specifics: “when it comes to warfare,” she observes, “norms and interests … tend to present directly opposite imperatives for action” (67). But what of other areas of IL? And what if particular regimes or rules reflect what powerful actors prefer or believe or, alternatively, if law reflects actual shared understandings among states?

Janina’s response is that not all IL is capable of behavourial relevance. It will lack this capacity when it does not strike a genuine compromise between interests and normative beliefs but rather reflects a convergence among actors; when it is “lopsided” by giving too much weight to either interests or norms; or when it “leaves too much room for interpretation as to what the compromise is or how to get there” (59). In the first case, law simply aligns with prior motivational forces rather than mediates between divergent forces (62). In the second situation too, law “no longer adds anything of its own” and, given its lopsidedness, might meet with less compliance (58-59). In the last case, law enables actors to pursue interpretations that support their prior interests or beliefs (59). Indeed, these considerations lead Janina to conclude, rather sweepingly, that customary international law is unlikely to be behaviourally relevant. It is either “superfluous” (299) because it “only comes about if instrumental or principled considerations regularly converge and no compromise is necessary” (61), or it is “prohibitively indeterminate” (299).

In short, Janina presents a theory of the conditions for law’s behavioural relevance, conditions that may or may not be present. But even on these terms, a question remains: how exactly does law strike the crucial compromise? Janina asserts that the compromise between utility and appropriateness gives rise to a separate standard that cannot be reduced to either appropriateness or utility: legality. I could not agree more. But what is lacking is a convincing account of legality. By dismissing congenial frameworks that do trace out distinctive features of legality, Janina deprives herself of an opportunity to strengthen the very claim on which her theory depends. Could it be, for example, that law’s action guidance and justiciability derive from the rule of law requirements (clarity, predictability, consistency, public availability etc.) the importance of which Janina does appear to acknowledge in the book’s conclusion (304-305)? Doesn’t law need such a richer notion of legality to provide the discipline and guidance that mediates between interests and beliefs?

A Theory of IL’s Distinctiveness

The pitfalls of pinning law’s capacity for behavioural relevance on its compromise feature also affect Janina’s account of law’s distinctiveness. It seems odd to reduce the specificity of legal interaction to “compromise.” Is compromise between utility and appropriateness really unique to law? Couldn’t the same be found in other social norms, such as conventions of politeness or rules of a game? We’d need to hear more on this. In any event, it seems counterintuitive to exclude widely acknowledged features of legality from the account of “compromise” and, hence, of law’s distinctiveness. What is more, if some legal rules, as Janina suggests, do strike a behaviourally relevant compromise while others (including all of custom!) do not, then it is unclear how compromise can be the distinguishing feature of law.

A Theory of IL?

Does the book advance a (constructivist) theory of IL, or a theory of what IL is? The answer depends on what is meant by those terms. What Janina delivers is a constructivist IR theory of the behavioural relevance of IL, not a legal theory. Indeed, she says as much when she notes that she is not intent on distinguishing law from non-law, but merely good from bad law (58-59). Still, even if understood as a constructivist theory of IL’s behavioural relevance, Janina may over-promise. I noted earlier that she focuses on one area of IL. She presents IHL as a “hard case for testing IL’s capacity to influence state behavior” (4, 7). Hence, if IL can exert influence in the context of warfare, it can do so anywhere. But given the very specific preconditions that Janina sets out, it is not so clear that this extrapolation works. After all, in IHL Janina finds the tension between interests and belief that she needs to be able to claim that law contains a behaviourally relevant compromise. We don’t know for sure whether the same holds for all areas of IL. So, paradoxically, perhaps IHL is an easy case for her theory?

Notwithstanding these questions, I found Janina’s book to be tremendously insightful, and remarkable in its rigour and nuance. It not only tackles difficult, but also crowded terrain. And so it is no small accomplishment that Janina provides genuinely new answers to well-worn questions, answers that IR and IL scholars alike will find both illuminating and thought-provoking.

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