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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. Read the rest of this entry…