Constructivism and the Politics of International law

Constructivism and the Politics of International Law

Abstract

Ever since constructivism emerged as a distinct approach in the

field of International Relations, it referred to international

law extensively to challenge the positivist foundations of the

discipline. The rationale for this move can be found in the

historical context of IR’s institutionalization in the US.

Especially during the Cold War and the dominance of power

politics, IR treated International Law (as every legal order)

as its very ‘other’ that one is not allowed to take too

seriously in order to not fall into the trap of utopian

politics. IR only ‘rediscovered’ IL in the late 1980s when the

Cold War was about to come to an end. It is also at this time

that constructivism emerged in various forms and guises. This

chapter discusses the constructivist approach in international

legal theory (ILT) by pointing to the different constructivist

understandings of the ‘politics’ of international law: while

moderate versions of constructivism associate the politics of

international law with ‘compliance’, radical constructivist

approaches understands the politics as emanating from the

construction of social spaces and temporalities. The politics

of international law is linked to international law’s

disciplinary structures, argumentative styles and practices.

.

1

Introduction

At first sight, it appears to be an easy task to discuss the

relationship between constructivism and international law.

Whereas the majority of International Relations (IR) theorists

was happy to treat international law as epiphenomenal,

constructivists always referred to international law

extensively in order to challenge IR’s positivist foundations.

One only has to remember that the now classic book by Friedrich

Kratochwil on Rules, Norms and Decisions had the subtitle ‘On the

Conditions of Practical and Legal Reasoning in International

Relations and Domestic Affairs’ (Kratochwil 1989, emphasis

added). Kratochwil not simply wanted to contribute to IR, but

also to legal theory and jurisprudence (Kratochwil 1989: 1). He

even devoted a whole chapter on the concept of law (Kratochwil

1989: ch. 7).1

Yet the question of how constructivism relates to

international law in general and international legal theory

(ILT) in particular is somewhat more complicated simply because

there is no agreement on what constructivism actually is. Ever

since its emergence, it was divided into a ‘thin’ and ‘thick’

or ‘conventional’ and ‘critical’ (Hopf 1998), ‘soft’ and

‘radical’ (Palan 2000) or moderate and radical version (Kessler

2012). The moderate version circles around the work of

Alexander Wendt and has touched upon questions of international

law through contributions by, for instance, Christian Reus-

1 The same holds true for Onuf’s reference to ‘rules’ and ‘rule’ or Wendt’sthree cultures of anarchy. See Onuf (1989) and Wendt (1999).

2

Smit, Ian Hurd, Emanuel Adler, Thomas Risse, Martha Finnemore

and Richard Price.2 The radical version is predominantly

represented by the work of Nicholas Onuf and Friedrich

Kratochwil.3 These two strands of constructivism differ

fundamentally in their take on ‘the politics of law’.

Given the mutually incompatible streams of constructivist

theory building, it is neither useful to throw them together

under one heading, nor to search for a common ground that would

somehow link these literatures in an intelligible and coherent

manner together. An adequate answer to the question of what

constructivism has to offer for ILT thus needs to reflect upon

these differences. In this chapter, we argue that both versions

differ in their very understanding of the politics of

international law and thus the way they connect to ILT. We show

that the moderate version is formed as an attempt to marry

sociological institutionalism with (what this version perceives

to be) critical theory. Their research is driven by a

functionalist understanding of international law where law

helps to secure normative progress.4 This leads them to make visible the

force of law through states’ compliance and the politics of law with their reasons for

doing/not-doing so. Much of the discussion then focuses on how

legal norms emerge, how they get institutionalized and are

subsequently followed by states. A primary example is the power

of human rights and the literature on legitimacy. By taking

2 See, for instance, Reus-Smit (2003, 2004), Hurd (1998, 2007), Risse (2000),Finnemore (2000) and Price (1995).3 Please note that the demarcation between moderate and radicalconstructivism should not been understood as a strict divide but can beunderstood as a heuristic. There are of course authors whose approachescould be added to both camps4 This however, is built on an uneasy combination of is and ought and thuson how legal norms actually work.

3

compliance as its prime problématique, this literature often

refers to liberal writers in ILT and shares with them a

functional understanding of law.

The radical version differs insofar as it starts with the

counterfactual validity of norms: norms cannot be observed by

looking at what actors do, but validity presupposes the act of

observation and interpretation. Validity needs to be

reconstructed by showing how behavior is justified., i.e. validity

can only be determined when ‘observable’ behavior is put into a

wider context through the assemblage of actions and events into

a wider narrative. Hence, for radical constructivists, the

force of law is associated within the legal field itself: the

politics of law is linked to the disciplinary or communicative

structures and practices (to name different possible

trajectories) through which these interpretations,

justifications and reconstructions are put in place and made

intelligible. Both Kratochwil and Onuf –albeit differently-

understand ‘the politics of law’ with the social dimension of

law encapsulated in terms as constitutive rules, discourse,

field or social system. Hence, they take pains to discuss legal

theories to highlight the politics of courts, legal

interpretation and legal reasoning. Radical constructivists

thus link to ILT through the work of the Critical Legal Studies

literature to point at law’s internal paradoxes, exclusionary

forces and systemic blind spots. For example, Onuf and

Kratochwil – similar to David Kennedy or Martti Koskenniemi -

see law as a practice where practice is understood as a world

of artifice.

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To show this difference, this chapter is structured in three

parts. Whereas the moderate version is discussed in the first

section, the second section deals with the radical

constructivist’s contribution to ILT. The third section points

to further questions constructivism could raise in ILT. This

section thus moves beyond the reconstruction of constructivism

itself and advances the constructivist agenda: to look at

processes of legalization, i.e. the drawing of boundaries, ways

of sense-making (semiosis) and particular contingency

associated with the ‘making’ of legal facts, cases and

argumentation. The constructivist interest in how international

lawyers ‘make sense’ of their world does not result from an

anthropological or ethnographic interest, but because of the

kind of politics involved: from this perspective, the politics

of international law is neither reducible to what states do,

nor to the political agenda of international lawyers. Rather,

this concept of politics treats international law as a distinct

rationality and discourse with its own rules of formation,

spatio-temporal fixes and modes of exclusions. Highlighting the

social dimension of international law, for example, points to

the reconfiguration of space-time in law with crucial

repercussions of the self-description of law and the kind of

expertise it gives rise to. 1. The contours of constructivism

The advent of constructivism has to be seen in the light of

IR’s regime debate of the late 1970s and early 1980s.5 Back

then, the image of the United States as a hegemon in decline

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led IR theorists to wonder about the limits and contours of

state cooperation when the hegemon is not able to overcome the

imperative of international anarchy anymore. One answer led to

regimes where the ‘public good’ character of a stable order

could be transformed into a ‘club’ rationality on the basis of

shared principles, norms and rules. Within regimes, not the

balance of power, but information and knowledge exchange

characterizes the politics of state cooperation (Krasner 1982;

cf. also Keohane 1984).

With the concepts of rules and norms (re-)entering the

vocabulary of IR, the door was open for constructivists to

challenge the positivist approach to rules and norms on their

own grounds. On the one hand, this puts constructivists close

to matters of international law. On the other hand, instantly

different modes of constructivism emerged with crucial

repercussions on how they relate to the regimes literature in

general – and their conception of the politics of international

law in particular.

Moderate constructivists are content to define

constructivism as the study of norms in international life (see

Klotz 1995, Price 1995, Finnemore 1996: 325, Katzenstein 1996,

Brunnée/Toope 2012; for a critique see: Wiener 2008). If one

follows the Kelsian way and understands law as a system of

norms, then constructivists share the same interest in norm

creation, dispersion and enforcement. The power of law derives

from the validity of legal norms. The politics of law shows in

the capacity of legal norms to ‘cause’ and constrain behavior

of legal persons.

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As a consequence, the moderate constructivist’s agenda is

defined by the attempt to explain when, why and how norms

‘matter’. Constructivists engage in a long discussion with

rational approaches to clarify their critique, build bridges

and produce a research program in the Lakatosian tradition as

requested by rationalistic IR scholars (Keohane 1988; see

Finnemore and Sikkink 2001). How constructivism and rationalism

relate to each other become the primary obsession for moderate

constructivists (see Wendt 1999; for International Law see

Brunnée 2012: 43; Goodman and Jinks 2005, Johnston 2011). To

pursue this ‘new program’, moderate constructivists have high

hopes on sociological institutionalism. .Martha Finnemore, for

example, opened a review article on sociological

institutionalism and its possible additional value for

constructivism with the observation that, on the one hand,

“[i]nternational relations scholars have become increasingly

interested in norms of behavior, intersubjective

understandings, culture, identity, and other social features of

political live” (Finnemore 1996: 325). On the other hand,

however, the prevailing realist and liberal IR theories

(Keohane 1988 would have called them rationalistic) were not

able to grasp these concepts fully. She therefore proposed that

constructivists embrace the sociological institutionalism

developed around John W. Mayer, as it “developed a particularly

powerful set of arguments about the role of norms and culture

in international life” (Finnemore 1996: 325). It could also

compliment constructivism as it tells “us what the social

structure is” (ibid 327): World cultural rules, i.e. Western

modernity a la Max Weberwith itsemphasis on justice and

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progress, constitute the actors of IR.6 Finnemore thus assumed

that by marrying ‘norms’ with sociological institutionalism,

constructivism can generate new research questions, in

particular vis-à-vis the legitimacy of international

organizations (cf. Barnett and Finnemore 2004, Hurd 2007) and

human rights (Risse/Sikkink/Ropp 1999, 2013; ).

We can see that the confinement of constructivism as the

study of norms flanked with the interest in compliance and

sociological institutionalism translates constructivism into an

‘empirically’ driven research program to ‘test’ the validity of

norms and hence marry the study of norms with the positivist

‘standards’ to evaluate the quality of scientific work. Norms

are, thus, framed as independent variables and become an

explanatory structure (Checkel 1998: 328).7

The empirical value added of constructivism was soon

found: moderate constructivists have pointed out that non-state

actors, and in particular so-called ‘transnational advocacy

networks’, facilitate the diffusion and implementation of norms

in issue-areas such as the environment or human rights. 8 These

networks attempt to build links among actors in civil6 This social structure is “ontologically primary” (ibid 333) and it is thuspossible to overcome agent-based fallacies and resulting state-centrism,which are committed by liberal and realist IR theories. At the same time,sociological institutionalists could benefit from IR as to become moresensible for politics (ibid 344).7 Probably the most prominent definition in this context is PeterKatzenstein’s. He uses „the concept of norm to describe collectiveexplanations for the proper behavior of actors. In some situations normsoperate like rules that define the identity of an actor, thus having‘constitutive effects’ that specify what actions will cause relevant othersto recognize a particular identity. In other situations norms operate asstandards that specify the proper enactment of an already defined identity.In such instances norms have ‘regulative’ effects that specify standards ofproper behavior. Norms thus either define (or constitute) identities orprescribe (or regulate) behavior, or they do both.” (Katzenstein 1996:5).

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societies, states and international organizations – both on the

domestic as well as transnational level (Keck and Sikkink 1998;

see also Khagram, Siker and Sikkink 2002). By introducing these

networks we can observe a double move away from the statist and

static undertone of prevailing IR approaches. First, as the

“explanandum became how ideas and identities were formed and

who did the forming” (Sinclair 2010: 144). And second, these

‘transnational advocacy networks’ are the missing link to

explain how, why and when international actors such as states

comply with these norms (Finnemore and Sikkink 1998;

Risse/Sikkink 1999).

This research program was further advanced through “the

norm cycle model” (Finnemore and Sikkink 1998). To see how

moderate constructivists theorise and understand norms, it is

useful to discuss this model in some detail: The first stage

analyses the emergence of a norm. As norms “do not appear out

of thin air” (ibid, p. 896), they are actively created, framed

and promoted by so-called norm entrepreneurs. Norm

entrepreneurs are motivated by “altruism, empathy, and

ideational commitment” (ibid, p. 898) and need some kind of

organizational platform, such as non-governmental organizations

or/and transitional advocacy networks. These organizations

collect and distribute expertise and help to coordinate

behaviour. As norm entrepreneurs deal with powerful states,

they cannot ‘coerce’ but need to ‘persuade’ states (ibid, p.

898). The first states to be persuaded become and act as “norm

leaders”. After a “critical mass” accepts the norm, a “tipping

8 Here, authors such as Martha Finnemore, Margaret Keck, Thomas Risse,Stephen C. Ropp, Kathryn Sikkink and others did valuable research.

9

point” is reached through which the norm “cascades” (ibid, p.

901).In this second stage of “norm cascades”, a different

dynamic is observable: the main actors are now states and

international organizations. Networks start to play a minor

role, even though their influence is not to be neglected. Yet

at this stage, states “socialise” and start to comply “for

reasons that relate to their identities as members of an

international society” (ibid, p. 902), such as legitimacy,

reputation or esteem. According to Finnemore and Sikkink, norms

enter their third and final stage when they are completely

“internalized by actors and achieve a ‘taken-for-granted’

quality that makes conformance with norm almost automatic”

(ibid, p. 904). Now, norms are enacted through law,

bureaucracies or professional training. Only when new norms

emerge and disperse in the world order, this norm then cedes to

exist.

Finnemore and Sikkink’s three-stage ‘life cycle’ model was

further developed in the influential edited volume The Power of

Human Rights (Risse, Ropp and Sikkink 1999; see also Risse, Ropp

and Sikkink 2013) into a five-phase ‘spiral model’. In the

opening chapter Risse and Sikkink attempt to “present and

develop a theory of stages and mechanisms through which

international norms can lead to changes in behavior” (Risse

and Sikkink 1999: 2), or - to put it differently and following

Katzenstein (1996) - how ideas (individualistic cognitive

commitments) become norms (collective behavioural claims on

individuals) (p. 7). First, Risse and Sikkink build on the work

on ‘transnational advocacy networks’. These networks are

crucial in three manners. First, they blame “norm-violating10

states” in the international arena and “remind liberal states

of their own identity as promoters of human rights”; second,

they “empower and legitimate” domestic non-state actors

(especially NGOs); third, they create a “transnational

structure pressuring [norm-violating] regime” (Risse and

Sikkink 1999:5).

This process of internalization and domestic

implementation can be understood as a “process of socialization”.

And the concept of socialisation constitutes a wonderful

playing ground to test various causal mechanisms that link

constructivism with broader debates in social theory. For

example, norms are internalised due to “processes of

instrumental adaptation and strategic bargaining” (strategic

action); “processes of moral consciousness-raising,

argumentation, dialogue, and persuasion” (Habermas 1984; Risse

2000; Deitelhoff and Müller 2005) or “processes of

institutionalization and habitualization” (i..e historical and

sociological institutionalism, seeHall and Taylor 1996; March

and Olsen 1984).

The subsequent ‘theory-building’ of socialisation is then

advanced through the ‘spiral model of human rights change’

(Risse and Sikkink 1999).9 The spiral model has a similar

mechanistic rationale as the norm circle model discussed above

and discusses similar issues. According to this model, human

rights violating states start, through external pressure from

transnational advocacy networks, with human rights talk. By

doing this they are entrapped by domestic opposition and9 The ‘spiral model‘ draws not only the ‘life cycle’ model but also on the‘boomerang pattern‘ developed by Keck and Sikkink (1998).

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international networks –and ultimately obey to the norms. The

spiral model thus explains how norms are institutionalized,

legalized and habitualized.

This approach with its focus on socialisation and the

identification of causal mechanisms links moderate

constructivists with the field of ILT in specific ways. First –

and most obviously – moderate constructivists share the

interest in the (liberal) legal question of ‘why states comply’

(Koh 1997:2599; see already Henkin 1979 and in IR Hurd 1998).

Generally speaking, this question is answered by recourse to

the three legal traditions of Hobbes (power), Locke (interest)

and Kant (legitimacy). How international law matters – thus

depends on what kind of ‘culture’ of the international we find

ourselves in. At the same time, constructivists have

reformulated these three traditions by linking them to

different rationalities of action.

These rationalities of action are enacted through the

sociological institutionalism and March and Olson’s distinction

between “logic of consequence” and “logic of appropriateness”

(March and Olson 1984).

While the ‘logic of consequences’ represents the

rationalistic decision making on the basis of instrumental

rationality, the logic of appropriateness is a perspective that

sees human action as driven by rules and norms (for a critique

see also Sending 2002). Here, rules are followed because they

are perceived as natural, rightful, expectable and legitimate.

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The recourse to the logic of appropriateness subsequently

opened the door to inquire approaches in Political Theory, such

as Jürgen Habermas’ communicative rationality. This approach

was subject to a larger debate in Germany in the 1990s. Here,

the so-called ZIB-debate, coined after the journal (Zeitschrift

für Internationale Beziehungen; short: ZIB) in which the debate

started tried to marry Habermasian thought with the regime

literature. Moderate constructivists such as Harald Müller or

Thomas Risse tried to show that actors in world politics do not

only follow a strategic logic of action but often a

complementary logic of persuasion or, as it was also called, a

‘logic of arguing’ (Müller 1994, Risse 2000; Deitelhoff and

Müller 2005; for an overview see Niesen and Herborth 2007).

This question was transformed into an empirical driven research

program by the early 2000s to inquire into the institutional

configurations that would allow for arguing and persuasion to

take place (Müller and Deitelhoff 2005). Nicole Deitelhoff for

example argued that the creation of the permanent International

Criminal Court (ICC) in The Hague could be understood from ‘the

logic of arguing’. The logic of arguing for example explains

why the Rome Statute was far more progressive than the

“conservative model“ proposed by the International Law

Commission in 1994 and favoured by the P5 (Deitelhoff 2009:

38). This logic of arguing encompassed non-state actors, in

particular transnational advocacy networks, like Amnesty

International, which provided valuable legal expertise to

small- and medium-seized states. This expertise was put into

practice in a number regional conferences organized by non-

state actors together with countries in favour of the court.

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These conferences, far away from the UN headquarters in New

York and the influence of P5, provided an environment for

argumentation and persuasion.

A second avenue how moderate constructivists link with ILT is

constituted by the common interest in “legitimacy”. Although

legitimacy is still confined to the question ‘why states

comply’ (see Franck 1990), the literature on legitimacy differs

in significant ways from the discussion on various logics of

action that we just discussed. At this point, it is interesting

to note that legitimacy was almost absent from debates in IR

(and most of IL as well) until the late 1980s. Its advent in

the early 1990s both symbolises the hope of a new world order

after the end of the Cold War and marks one of the most

significant shifts in the international political vocabulary.

Previously confined to the analyses of domestic politics, it

was soon applied to the application and performative power of

international rules more generally. For moderate

constructivists, the concept of legitimacy provided an avenue

to explore the normative dimension of politics which also

implies an inquiry into the role law could play for normative

progress. For example, Ian Hurd in a well-received article in

the journal International Organization is interested in the question

“what states motivates to follow international norms, rules and

commitments” (Hurd 1999: 379). Hurd explicitly links legitimacy

with “the normative belief by an actor that a rule or

institution ought to be obeyed” and he continues that “[i]t is

a subjective quality, relational between actor and institution,

and defined by the actor's perception of the institution. The

actor's perception may come from the substance of the rule or14

the procedure or source by which it was constituted. Such a

perception affects the behaviour because it is internalized by

the actor and helps to define how the actor sees its interest“

(Hurd 1999: 381). Legitimacy comes into play where the

prevailing utilitarian logics of actions in IR, based on

coercion (Hobbes) or self-interest (Locke), have difficulties

to explain certain events and situations such as the fact that

also great powers respect in most of the time the norm of

sovereignty, understood as non-intervention, or the rule of

international law. Legitimacy complements thus rationalistic IR

approaches and can help to “bridge between rationalistic and

constructivist approaches” (Hurd 2007:2).

Legitimacy thus provides an avenue to leave behind the

confines of inter-state politics, to embrace normative

aspirations of world politics and provide a common research

agenda between moderate constructivists and international legal

scholars where the concept is –similarly to IR –enjoys

increasing popularity. Here, two approaches stand out and seem

of particular interest when it comes to discuss the

relationship between ILT and constructivism. This is, on the

one hand, the work of Thomas Frank in the late 1980s and early

1990s and, on the other hand, the ‘interactional framework’ to

international law developed by Jutta Brunnée and Stephen Toope.

Franck asks, similar to many moderate constructivist, why

“powerful states obey powerless rules” (Franck 1990: 3, also

scholars Henkin 1979, Chayes/Chayes 1995, Koh 1997)). For him,

they do so in the case of a particular rule because “they

perceive the rule and its institutional penumbra to a high

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degree of legitimacy” (Franck 1990, p. 25). He defines

legitimacy itself as “ a property of a rule or a rule making

institution which itself exerts a pull toward compliance on

those addressed normatively because those addressed believe

that the rule or institution has come into being and operates

in accordance with general accepted principles of right

process” (ibid, p. 24). Franck is thus interested in process

rather than substance (such as ideas of global justice would

emphasise). As the idea that nations comply with international

law as long as they perceive its rules as legitimate is not

directly observable, Franck draws on a number of properties of

rules, which he considers to make them legitimate and generate

a higher pull of compliance. These properties are their

determinacy (semantic clarity), coherence (consistency with

other rules), symbolic validation (authenticity through

pedigree and rituals) and adherence (connection to secondary

rules).

On the other hand, Brunnée and Toope (2010, 2011) perceive

their “interactional framework” of international law as

explicitly interdisciplinary. In particular, they attempt to

bring various strands of moderate constructivism with the legal

work by Lon Fuller’s (1969) together. They are interested how

legal obligation is created and how a distinctive legal

legitimacy is generated. According to Brunnée and Toope, this

is the case when three things come together. First, norms

(legal and non-legal) need to be embedded in an underlying set

of shared understanding. Here, they draw on the work on norm

entrepreneurship and socialisation, which we introduced above

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in the context of human rights. Second, to distinguish legal

from non-legal norms, they draw on a number of criteria of

legality promoted by Fuller (1969). According to Fuller, these

criteria – such as, for instance, generality, non-

retroactivity, congruence and clarity – create fidelity to law

among social actors. While for Fuller, the existence of these

criteria is enough, Brunnée and Toope argue that legality can

only exist as a practice within, what Adler (2005) calls, a

“community of practice”.

3. Radical Constructivism and the study of international law

The last section discussed how moderate constructivism entered

ILT in recent years. When we look at the more radical version

of constructivism, the picture is a different one, in

particular in relation to its understanding of the politics of

international law and its link to ILT. For radical

constructivism, the work of Nicholas Onuf and Friedrich

Kratochwil stand out as both referred from early on to

international law to advance their projects. 10

For example, in World of Our Making, Onuf attempts “to reconstruct

a self-consciously organized field of study, or discipline,

called International Relations” (Onuf 1989: 1). And this act of

reconstruction is in turn only possible within a constructivist

framework. For Onuf constructivism is a “way of studying social

relations – any kind of social relations. (…) [I]t stands on10 Onuf,(1989) actually introduced the notion ‘constructivism’ to thediscipline as well as the distinction between International Relations (theacademic discipline) and international relations (the discipline’s field ofstudy And both, is for Onuf intertwined (1998b). As academics are alwayspart of the field they study.

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its own as a system of concepts and propositions.

Constructivism is not a theory as such. It does not offer

general explanations for what people do, why societies differ,

how the world changes” (Onuf 1998b: 58). As constructivism is

not a theory as such, it is more a way meta-theoretical

reasoning and not a substantial theory of politics such as

Realism, Marxism or Liberalism seem to be. Onuf describes his

own substantial theory of politics in turn in his early

writings as “Kantian” (1994: 2) and later on as “republican“

(Onuf 1998a; Onuf and Onuf 2006) – whose links to ILT deserve

further discussions in their own right, but which we can’t do

so here. Rather, it is crucial that constructivism is put

forward as a challenge of IR’s core assumption that ‘politics’

can be attributed to anarchy and hence sovereign states.

If we start with anarchy, international law can only play an

insignificant role whose lack in sanctioning power then

deprives it of much of its legal force. Yet to see that

international relations presuppose concepts of the social –

puts international law right at the centre of political

analyses. For one, international law constitutes its own

distinct social sphere with own modes of exclusion, internal

hierarchies and disciplinary structures. On the other hand, and

this is what Onuf focuses on, the social is encapsulated in the

concept of ‘rules’. Hence, in order to understand

constructivism, we need a concept of (legal) rules, as he puts

it: “Constructivism holds that people make society, and society

makes people. This is a continuous, two-way process. In order

to study it, we must start in the middle, so to speak, because

people and society, always having made each other, are already18

there and just about to change. To make a virtue of necessity,

we will start in the middle, between people and society, by

introducing a third element, rules, that always links the other

two elements. Social rules (the term rules includes, but is not

restricted to, legal rules) make the process by which people

and society constitute each other continuous and reciprocal”

(Onuf 1998b: 59, emphasis in the original).11

Rules do not determine social behavior but provide the

conditions of possibility and act as ‘sign posts’, as

Wittgenstein has put it. This allows him to see that through

rules agents construct our world (Onuf 1985: 396); on the other

hand, rules can only be made visible through the study of texts

and discourses..12

For example –and for his analyses of international law of great

importance - Onuf follows Searle’s (1979: ch. 1) categorization

of speech acts,13 which he links to types of legal practices:11 But Onuf’s work is not just about rules. Only the first part of his

central monograph, World of Our Making, is dedicated to the question of

rules (ch. 1-4). The second part (ch. 5-8) is concerned with rule. For Onuf

rules and rule are intertwined, as rules produce rule and vice versa: “By

constituting conditions of rule, rules always distribute privilege, and

always preferentially” (Onuf 1989: 128). Here, in questions about the

distribution of politics, Onuf situates the realm of politics.

12 This puts Onuf close to the critical legal project of David Kennedy (Onuf1985: 391-395). In contrast to Kennedy, however, Onuf takes recourse to theordinary language philosophy of later Wittgenstein.

13 Speech acts can be one of five types: assertives (or constatives), directives, commissives, expressives and declarations. Expressives serve toconvey an attitude or emotion. For Onuf, they are no rule candidates as they are only related to the speaker and are over when acknowledged by the hearer. The same holds true for declarations which even do not need the acknowledgement of the hearer. Thus these two are neglected in the further

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For, Onuf “all rules are either assertives […] or directives

[…] or commissives” (Onuf 1985: 401). Commissives consist in

the declaration of speaker’s commitment to some stated course

of action, they go typically with verbs such as ‘promise’ or

‘offer’ and they “fit words to the world” (Onuf 1989: 93).

Directives contain an action the speaker wishes the hearer to

perform, they typically contain verbs such as ‘ask’, ‘demand’,

‘command’, ‘forbid’, ‘permit’ or ‘caution’ and they “fit the

world to words” (Onuf 1989: 93). Assertives are statements

stating a belief, which the speaker wishes the hearer to

accept, they appear typically with verbs such as ‘state’,

‘affirm’, ‘report’, ‘characterize’, ‘attribute’, ‘insist’, or

‘dissent’ and they “either reflect an existing words-to-world

fit or propose a new one” (Onuf 1989: 93). Or to put it

differently, “all rules are either assertives of the form, I

state X counts as Y, or directives of the form, I state that X

person (should, must, may) do Y, or commissives of the form, I

state that I (can, will, should) do Y” (Onuf 1989: 90).

These different types of rules – then brings him to different

practices:14 first, naming and relating (or designating

position) which can be identified with instruction rules;

second, having and using (or allocating possession and use)

which can be related to assertives or conferrals; and finally,

enabling and making unable (or exercising control) which

mirrors directives. Of course, in reality these three

activities and their related rule types are mixed. Yet, they

discussion. 14 To show this Onuf, draws on work undertaken with V. Spike Peterson (Onuf and Peterson 1984).

20

allow us to do things: Instruction rules are principles and

they help us to rank and choose between a large number of

instructions; conferring rules are regulation and help to

routinize; and directives are what normally, i.e. by legal

positivists, is called law because they are formally enacted

and subject to enforcement.

We can find all three types of law in domestic realm as in

international relations. Nevertheless, there are differences

between the domestic and the international order, as the latter

lacks the formalization of the former and as we can find,

therefore more self-referential rules. Thus Onuf claims: “But

law they are, whatever damage this does to the positivist

conception of proper legal order” (Onuf (1985: 409) and

concludes “that the international legal order, although lacking

a constitutional template for extrusion of legal rules, is very

much a legal order” (Onuf 1985: 410).

Kratochwil pursues a slightly different agenda. At first

sight, he appears to share the moderate constructivists’

interest as he “examines the role of norms in international

life”. Yet this is as far as this similarity goes. His interest

in norms is not motivated by some empirical test of legal

validity, but that IR’s “treatment of norms suffers from a

variety of epistemological shortcomings” (Kratochwil 1989: 1;

see also Kratochwil 2000).15 These shortcomings are rooted in

15 So, Onuf focus on rules and Kratochwil on norms. But in the end bothterms seem to be interchangeable, as Onuf pointed out recently: “WhileKratochwil and I have variously addressed these issues, I limit myself hereto the claim that rules and norms are interchangeable as generic terms forany medium by which obligation is conveyed (and by implication, any suchmedium is always regulative and constitutive at the same time). I favor thegeneric term rule to norm, as do most English-speaking philosophers,

21

the very definition of IR as the study of anarchy and its sharp

distinction between the domestic and international order.

He takes up a point that was identified in a co-authored piece

with John Ruggie in 1986 and argues that the regime literature

is grounded on problematic theoretical assumptions as

“epistemology fundamentally contradicts ontology” (Kratochwil

and Ruggie 1986: 764). On the one hand, the idea regimes,

drawing on terms such as ‘principles’, ‘norms’, ‘rules’ or

‘expectations’, is based on an intersubjective ontology but

relies on the other hand on a positivistic epistemology, which

can not fully grasp intersubjective phenomena. These

shortcomings result also from the fact “that the work on

regimes is characterized by an egregious lack of familiarity

with legal theory” (Kratochwil 1984: 344). What is needed to

overcome these “epistemological anomalies” is a new research

program open for intersubjectivity (Kratochwil 1989: 257-262).

At this point, he blames not only the literature on regimes of

having a problematic conception of (international) law but he

is also highly critical with many prevailing approaches in ILT

as well. Here, his main concern is that it is not possible to

define what ‘law’ is as “attempts at defining a demarcation

between legal and other norms is bound to fail becauses [sic!]

it fundamentally misconstrues the problem of arriving at a

decision through the utilization of rules and norms. Although

judges are bound by the ‘law’ it can be shown that not all

‘legal’ rules are characterized by sanction, or form part of a

lawyers, and institutionalists old and new. Kratochwil has always favorednorm as a less confining term, and so have most sociologists withfunctionalist inclinations.” Onuf 2012: 20).

22

deductive hierarchical system of norms. Consequently, legal

rules and norms cannot be conceptualized as possessing one

common characteristic, or by being treated merely as

institutional rules” (Kratochwil 1989: 186).

For Kratochwil such a purely referential model of language,

trying to find a universal and transhistorical fixed definition

of law, should be abandoned as it cannot capture the different

meanings of “law”. He proposes, instead, as an alternative to

follow the line of the late Ludwig Wittgenstein (1953) and look

how ‘law’ as a concept is ‘used’ in different contexts. The

different uses of the concept can then be better understood as

‘family resemblances’, which are part of a particular ‘language

game’. By doing this we can “spell out some criteria that in

our society are part of the language game of law” (2014: 65).

In our society “law is a particular branch of practical

reasoning” (Kratochwil 1989: 18) and “can be conceived as a

particular system of communicative action” (Kratochwil 1984:

350). Thus, law cannot be reduced to written texts, such as it

is done through “a quick look at statutes, treatises or codes,

but it can only be ascertained through the performance of rule

application to a controversy and the appraisal of reasons

offered in defence of such a decision” (Kratochwil 2014: 66;

Kratochwil 1989: 18). Nevertheless it is important to notice

at this point that not all normative argumentations are legal

and that law can be distinguished, although not always sharply,

from other often-similar modes of reasoning such as bargaining,

debates or moral and rights-based reasoning. Thus, by

“emphasizing the style of reasoning with rules rather than

23

either the intrinsic characteristics of the norms, of their

membership in a system, or the contribution to an overarching

goal, we can give a more realistic account of the legal

enterprise” (Kratochwil 1989: 187). As legal reasoning is a

specific style of reasoning only a set of specific reasons

given is successful. First, legal argumentation draws primary

on sources, topoi, the creation of sub-types through further

distinction and analogies. In particular, analogies “lie at the

heart of legal reasoning” as their task is “to establish

similarities among different cases or objects in face of

(striking) dissimilarities” (Kratochwil 1989: 223).

Second, what counts as an analogy or valid legal reasoning is

no longer attributable to formal determinations. Instead, it is

important to emphasize that legal argumentation is always

embedded in a life-world, i.e. a set of wider contingent

“historical and sociological background conditions” and “that

law is always part of a political project that connects present

via the past to a future ‘utopia’” (Kratochwil 2009a: 56).

Third, the language game of ‘law’ is connected to the idea of

third-party settlement and official rule-handlers, such as

judges, which are authorized to take binding decisions what the

law ‘is’. Nevertheless a mere institutionalization of third-

party procedures and positions is not enough because this does

not, as examples from magic to theology show, entail legal

reasoning per se (Kratochwil 2014: 65-66). For Kratochwil, the

notion of legal authority is connected to the idea that legal

decisions are binding, i.e. they are valid even if mistaken and

can only overruled through higher instance. Furthermore, legal

24

authorities are bound by law. This means that they have

discretion to decide but not everything goes.

Finally, becoming a lawyer implicates learning a new language

and specific technique (ars legis) (Kratochwil 1989: 238;

Kratochwil 2014: 66). Lawyers frame the world according to a

“jural ontology” (Stone 1981) and learn what is part of the law

and what not – what counts, for instance, as a legal fact and

what not. Learning “such a language and speaking about the

world in such a way means to participate in a practice, a

shared form of life, as Wittgenstein called it” as it is more

about the “knowing how” as the “knowing what” (Kratochwil 2014:

67).

As a summary: the radical constructivist approach is linked to

ILT through the CLS movement and shares much of its interests.

The reason for both Onuf and Kratochwil to engage with

international law, however, is not to lay bare the paradoxical

and exclusionary forces in international law, but to challenge

IR’s preoccupation with anarchy that de-couples it from social

theory and makes it structurally blind for the obvious. In the

next section we want to step beyond the mere reconstruction of

constructivism and ILT, but put constructivism into practice to

show what kind of questions constructivism can generate.

4. Constructivism, international law and the challenge of world

society

25

The previous two sections have outlined how constructivists

approach legal questions. While moderate constructivists frame

the legal force in world politics in terms of compliance, the

politics of international law is ultimately linked to the

question ‘why states obey legal norms’. This question is

particularly relevant in legal areas such as human rights or

trade law where non-state actors and norm entrepreneurs

persuade and argue with states to change the normative

framework of world politics. With it comes a functionalist

understanding of law: law helps to advance a normative agenda

in world politics and thus is employed for the normative

progress of the global order. The link to ILT is then

established through the interest in legitimacy or the margins

of global justice.

Radical constructivists link the force of law within law

itself. Here, one can think of the juridical field, discursive

practices or the legal system as attempts to conceptualise this

self-referentiality of legal operations or legal practices.16

The link to ILT is established through the critical legal

scholar movement as characterised by Martti Koskenniemi and

David Kennedy.17

For radical constructivists, constructivism is not confined to

the study of norms itself as many believe, but the study of the

international as a social system characterized by contingency

and not by necessity (as natural systems would propose). The

study of contingency takes different forms in the various

strata of international life. International law, like the16 For an ethnographic approach, see Annelise Riles (2001).17 See also Anne Orford (2011) and Sahib Singh (2011).

26

economy, is characterized by a very specific contingency. How

contingency is reproduced and managed changes continuously.18

The vocabulary of norms, rights and risks provide different

vocabularies to deal with contingency and the modern notion of

norms is only one possibility of structuring legal

argumentation. The politics of law then is related to the way

in which the boundaries of the legal and non-legal are drawn

(Johns 2013), the complexity and contingency of legal

argumentation (Kennedy 1987; Kratochwil 1989; Koskenniemi 2005)

and ways of world making through lawyers (Orford 1998; Kennedy

2006; Kratochwil 2009b).The politics of international law is

thus not confined to ‘states’, but the inclusionary and

exclusionary forces of law that constitute law as a distinct

social sphere, i.e. the way lawyers make sense of their world

and how they make legal facts, cases and arguments.In this

section, we want to point to two questions that we think are of

particular interest for a constructivist ILT and that take the

changing contours of the global order as starting point: as the

global order changes, the question is what role international

law plays and how do its temporal, spatial and reflexive

conditions change. To highlight one aspect, we’d like to point

to the advent of risk and its consequence for expertise in

international law.

The Acceleration of legal practices: from norms to risk`?

18 Thus, constructivists emphasize ‘historicity’ (cf. Kratochwil 2006)

27

It is common to frame legal questions in terms of norms and

rules. Both international relations and international legal

scholars usually describe legal practices in terms of norms and

rules. This is particularly true for moderate constructivist

approaches. This vocabulary at the same time determines the

temporality (and ‘function’) of legal practices. For legal

proceedings to start, there has to be a perceived violation of

a norm or the failure to fulfil an obligation. Legal proceeding

then usually start by asking whether this constitutes a case,

what the case is and what legal institutions have the authority

to deal with it (overall: questions of jurisdiction). The legal

proceedings then need to clarify whether the act or non-act of

an actor indeed violated a norm or whether a norm actually

existed that regulates that behaviour (problem of norm

existence vis-à-vis norm enforcement). Subsequent debates then

may question how norms relate to each other, where they enter,

how they are to be applied and so on - until they also

determine what secondary rules are in place. The function

international law then has to play is to translate political

disputes in legal claims and thereby help to ‘civilize nations’

(Koskenniemi 1996: 489).

With the advent of the war on terror and the various pre-

emptive and precautionary practices it brought about, it

appears that international law changes its temporality. It has

not only to deal with events, acts and decisions that were

located in the past, but it has to deal with future events.

Pre-emption and pre-caution as principles of legal reasoning

inevitably escape the temporality of norms-based reasoning and

embraces risk-based approaches. Even though risk and norms are28

two different ways in which time can be ‘bound’, the way the

present and the future relate to each other are different: risk

is more future oriented. This becomes much clearer when we

remind ourselves that one cannot violate risk as one can

violate a norm. In contrast, risk requires continuous

adaptation of expectation on the basis of new information while

norm based reasoning is counter-factually valid and thus

inherently normative.19

The risk based rationality is particularly visible in the

context of targeted killings. Individuals can be ‘non-innocent’

under international law in three ways: either they are

responsible for some wrong-doing in the past, either they are

said to be individually dangerous, or they are dangerous

because they belong to a group (combatant). The first legal

institution is the most prominent one and follows the law

enforcement paradigm with fundamental legal notions and

categories in place (due process etc.). If an individual is

killed because it is found to be individually dangerous, there

are clear standards in place, such as the demand for an

independent investigation where the ‘legality’ of the act is

reconstructed ex post (with standards given by necessity,

proportionality etc.). The third case is governed by

humanitarian law (and hence the law of war) with clear rules on

how to separate combatants and non-combatants. Also in this

case, there are rules and standards in place. Through the

invocation of ‘risk’ as ‘danger’, we see that established legal19 Risk and norms thus give rise to different kinds of expectations:

cognitive in the case of risk and normative in the case of norms.

29

categories are blurred with the consequence that states

manoeuvre between legal categories because suspected terrorists

are said to constitute unlawful combatants or count as

‘civilians directly participating in hostilities’. The

terrorist remains a ‘legitimate’ target because he could use

force. Hence, we see how states war paradigm is supplemented

with elements of the law enforcement paradigm insofar as its

vocabulary is used without the acceptance of its standards

(Kessler and Werner 2008: 305).

Expertise between evidence and intelligence

The change from norms to risk also changes the legal expertise

(see also Leander and Aalberts 2013). Usually, the issue of

expertise is discussed together with the role of scientific

knowledge in legal proceedings and thus the question how law is

connected with other sciences. Yet, as David Kennedy (2006) has

reminded us, international law itself constitutes a field of

expertise. 20

In the context of the norm, this expertise is structured around

cases. The lawyer is supposed to know the history of legal

norms as discussed and (not) applied in legal cases. A very

good lawyer even knows dissenting opinions, the traveaux

preperatoirs and maybe background stories why certain decisions

20 In particular, the realm of warfare is increasingly shaped by international law and in particular the law of force (ius ad bellum and iusin bello) as “this vocabulary – of just war, legitimate targeting, proportionate violence, and prohibited weaponry – has been institutionalized by the military. […] As such law today shapes the politics, as well as the practices, of warfare” (Kennedy 2006: 7)

30

and judgments were made. 21 The expertise lawyers provide again

is past-directed and not future oriented. It is not the task of

a lawyer to say what will happen, but to translate present and

past events into legal concepts on the basis of evidence. With

the advent of the risk rationality, this evidence does not

derive from the past, but the rationalization of a possible

future. On the one hand, this has blurred the distinction

between evidence and intelligence. As de Goede and de Graaf

have pointed out, in this context, legal cases operate on the

pre-mediation of possible futures with the consequence that the

legal question of aim and intent are replaced by the potential

harmfulness of the alleged attempt (de Goede and de Graaf 2013:

320). Judgments are reached regardless of whether an action has

taken place (for example whether a fare-well message was

distributed that could point to a terrorist act –or whether it

was simply retrieved by intelligence on the home computer). The

consequence of risk then is not only that legal rationalities

are blurred and used for political purposes, but that legal

proceedings and the infabrication of legal knowledge and the

formulation of legal argumentation are de-stablised.

5. Conclusion

This chapter discussed different constructivist approaches to

ILT. It differentiated a moderate and a radical version. The

moderate version grasped the legal force in terms of compliance

21 On the disciplinary processes, especially the ‚technologies of the self’,involved in becoming an international lawyer see Orford 1998.

31

which leads them to conceptualise the politics of international

law in the ‘assemblage’ of states and non-state actors in

processes of norm creation, dispersion and implementation. The

radical version on the other hand associated the force of law

internally with legal operations and the legal system

themselves. This links the radical constructivists with social

theoretical literatures around the juridical field, legal

system or discourse analyses as also detectable in the critical

legal movement. Radical constructivists are interested in norms

– but not for their own sake. Rather, they allow us to

reconstruct ways of sense-making of specific practices. At the

same time, they are counter-factually valid and thus escapes a

positivist philosophy of science.

This is the reason why the politics of indeterminacy for

example easily links with the radical constructivist

literature. Also the recent turn to ethics, the emergence of

new managerialism within international law, the ‘dark sides’ of

legalism or the emergence of international legal expertise are

of inherent interest for constructivists.

Where radical constructivists differ from critical legal

scholars is the path they currently undertake. Even though both

keep true to their interest in ‘contingency’, they are about to

pursue it in different ways. The critical legal studies

movement currently undergoes a ‘move to history’ where

historical inquiries are used to forward a critical agenda in

the sense that they undermine the foundations of orthodox legal

knowledge. Contingency is thus related to the ‘history of the

present’ and the excluded alternatives and avenues that

32

‘stabilise’ our modern presuppositions. Radical constructivists

on the other hand link contingency to social processes (legal

operations, practices, discourses etc). Their analyses thus

focus on how transformation of the world order redefine the

role and contours of the legal system/discourse/field and show

this through the redefinition, destabilisation and

rearrangement of legal categories through changes in the legal

semantics. This chapter outlines some of the arising questions

by looking, first, at the advent of risk in international law,

how the shift from norms to risk is linked to a different

temporality of international law itself, and how this changes

thus the argumentative moves and contours and, second, the

function of legal experts.

A way ahead for constructivism and ILT is provided by its

interest in the changing contours of the global order (as for

example represented in the concept of world society). World

society is not an attempt for a new ‘totalising’ approach that

encapsulates everything under one big narrative. Rather, it is

a way to take seriously the fact that international law as a

social sphere requires a concept of the social that is

different from the national level while it cannot at the same

time collapse into concepts like global justice. Rather, the

task is to reconstruct the changing role law plays in the

current global order while at the same time analyse how

international law reproduces and changes its constitutive

boundaries through which it makes sense of its world, allows

for career paths, positions, and the performative power of

expertise.

33

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