Abstract
This introduction positions The Status of Law in World Society in the context of Friedrich V. Kratochwil’s previous contributions to International Relations. It outlines how Kratochwil has replaced the rhetorical tradition that featured prominently in Rules, Norms and Decisions by practice theories and pragmatism in his new book. It then provides an overview of the nine new Meditations contained in The Status of Law, and introduces each contribution to this Forum.
Introduction
Twenty-five years have passed since Friedrich Kratochwil’s Rules, Norms, and Decisions has, along with Nicholas Onuf’s World of Our Making, formed what is today known as ‘radical constructivism’ in International Relations. 1 Now his new book on The Status of Law in World Society: Meditations on the Role and Rule of Law has been published. 2 The book offers nine Meditations that, without wanting to exclude other possible readings, can be divided into three parts: the first two Meditations (Meditation 1 on ‘Inter-disciplinary, the Epistemological Ideal of Incontrovertible Foundations, and the Problem of Practice’ and Meditation 2 on ‘Concepts of Law’) build the first part. Meditation 1 provides the context as it outlines Kratochwil’s take on practice, pragmatism, and his critique of the Cartesian ideal. This is continued in the second Meditation that, through a discussion of different concepts of law, shows how law relates to the ‘use’ of norms and can best be conceived as a ‘language game’ characterised by family resemblance rather than essential features and ‘definitions’. The second part ranges from Meditations 3 to 6 where the changing contours of the ‘field’ of law (constitutions and fragmentation, experts, global community and global administrative law) are explored respectively. Here Kratochwil’s very detailed discussions and sarcasm leave the reader with mixed feelings about some of the most important yet worrying developments in international law. Meditations 7 and 8 discuss the politics or rights with the shift from ‘what is right’ to ‘having a right’ and what that implies, for example, for the project of ‘human rights’. Even though these last two Meditations are in line with the second part as they take issue with a specific legal field, i.e. the ‘human rights’ discourse, they are also different as the concepts and theories of rights are up front. 3
This Forum discusses the book and reflects on what it tells us about constructivism as an approach, the relationship between law and politics, and the promises and limits of inter-disciplinary dialogue. Before I introduce the individual contributions, I will first attempt to ‘position’ the book both within the context of International Relations Theory in general and vis-à-vis Rules, Norms, and Decisions in particular.
The Status of Law and the Status of International Relations
A positioning of the book within International Relations is prima facie not easy: when we look at its title, easy denominators such as ‘constructivism’, ‘international thought’, ‘international relations’ or ‘world politics’ are missing. Instead we face concepts that are, shall we say, ‘less’ familiar within International Relations: world society has made some inroads to International Relations Theory, but has not yet managed to become an alone-standing ‘approach’ or a ‘thick theoretical concept’ such as ‘governmentality’ or ‘biopolitics’. The ‘denominator’ of ‘Meditations’ is hardly used across the social sciences. And the title’s focus on ‘law’ could suggest that the discussions are more of interest to international lawyers. 4
Yet, the title can be read in a different way which then reveals the complexity of the book: it tackles issues on at least three levels simultaneously which are all relevant for current International Relations theorising: the ‘politics of law’, the sociology of International Relations, and social theory more generally. As for the politics of law, The Status of Law is, as Rules, Norms and Decisions beforehand, situated ‘in-between’ International Relations, International Law and social theory and requires good knowledge in all those fields. And like Rules, Norms and Decisions, it sets out to overcome the disciplinary divides and exclusionary mechanisms within International Relations that, in the end, impoverish our understanding of politics. As the first Meditation makes clear, interdisciplinary dialogue is often preached but rarely accomplished. But that doesn’t mean we can give up on it especially as law has become the language of politics. 5 To talk about law, to reconstruct the (limits of the) legal vocabulary and discourse, and to understand contemporary debates and dynamics of both international law (as a field of practice) and disciplinary field is essential for understanding contemporary politics.
Second, the sociology of science is best encapsulated in his reference to ‘Meditations’, as ‘curious’ as this might seem: as Kratochwil makes clear, this ‘concept’ is re-appropriated from Descartes and turned against the Cartesian ideal of ‘demonstration’. 6 The ‘Medi-tations’ do not engage in deductivism or inductivism as we usually encounter them in book-length discussions. Kratochwil does not provide a ‘one-size-fits all’ conceptual framework at the beginning which then gets ‘filled’ in later chapters. This ‘common’ structure still kneels before the ‘scientific ideal’ of ‘necessity’, regardless of how post-structuralist the content might be. Instead, the book incorporates contingency and openness into the book’s structure where consent and ‘acceptance’ is then asked for in an exchange of arguments in an open space, and not by the quality of the ‘demonstration’. In this sense, The Status of Law is perhaps more radical than Rules, Norms and Decisions and some other books that are published under the flag of ‘constructivism’. On the other hand, with this ‘openness’ comes the danger that the book is charged with ‘lack of coherence’, ‘lack of argumentation’, and ‘eclecticism’.
And finally, on the level of social theory, the reference to world society highlights a politics of ‘boundary drawing’, that the field of international law changes vis-à-vis what we consider as ‘international’ or ‘global’ politics. In this sense, The Status of Law refers nicely to what Nicholas Onuf has named ‘world of our making’, i.e. the way international lawyers make sense of the world and thereby reproduce and alter the ‘field’ we commonly describe as ‘international law’. The Status of Law recognises that law today is everywhere and has become a ‘world’ of its own –which needs to be understood in its own terms in order to make sense of it. International law thereby becomes a field of practice and not simply a set of rules. The social theoretical challenge for International Relations is thus to come to terms with this politics of boundaries and the poly-contextuality that it encapsulates. This leads me to the question of how The Status of Law connects to Rules, Norms and Decisions.
From Rules, Norms and Decisions to the Status of Law
Of course, it is always a daunting enterprise to compare two books in just a few lines. It becomes even more daunting when these two books are as ‘complex’ as these two. One of the similarities is eventually that both books are not easily accessible and demand from their readership to be ready to follow the author from dense theoretical discussions to legal problems and intra-legal debates. In a time where ‘functional’ reading takes over intellectual curiosity, Kratochwil follows an unusual path. Books today are written with one storyline and have around 180 pages so that they fit into the daily reading routines. Like Rules, Norms and Decisions, the Meditations provide 300 pages of in-depth material that cannot simply be read in one sitting and then put aside peacefully. It’s a book one has to study before one starts to understand what is going on. Something, Kratochwil readily admits. 7
There are, however, two differences that I want to highlight and that need to be discussed. First, the two books differ in their ‘diagnostics’: Rules, Norms and Decisions took the then prevailing ‘Regime Theory’ as a vantage point to highlight the counterfactual validity of norms. 8 Therefore, Rules, Norms and Decisions connected the concept of ‘norms’ to ‘language philosophy’ where the limits of speech act theory served as a yardstick to show how ‘rational’ approaches systematically misread and therefore misunderstand the role of norms, regimes, and in the end also international law. It was written at a time when most International Relations scholars ‘gave up’ on international law and were happy to put it aside to advance a more ‘rigorous’ research agenda. Hence, Kratochwil turned to international law to challenge the then prevailing dogmas of international theory –especially the rational theory of action. Despite this interest, international law was still conceived as a language game where the ‘rhetorical’ tradition provided the source of inspiration. Rules, Norms and Decisions thus showed how lawyers exchange reasons, make claims and ‘argue’ through analogies and topoi. With reference to this forgotten tradition, Kratochwil offered a subtle critique on ‘modern’ notions of science, rationality and progress which understand ‘rhetoric’ as unscientific.
The Status of Law replaces references to the rhetorical tradition for pragmatism and practice theories. 9 I’d also say that while Rules, Norms and Decisions had Kant’s second Critique written all over it, The Status of Law has turned to Kant’s third Critique and its problem of ‘judgment’. International law is now conceived as a ‘field of practice’ that has its distinct rationale and ‘systemic’ characteristics, with its own vocabulary and ‘way of world making’. This of course raises questions about how constructivism relates to these philosophical positions and literatures, a question that this Forum seeks to discuss.
The Contributions to this Forum
The contributions to this Forum offer discussions in line with the three levels of the book as identified above: they explore the promises and limits of the turn to ‘practices’ in relation to inter-disciplinary dialogue, the question of the ‘politics of international law’ and the question of constructivism in International Relations.
How interdisciplinary research is to be accomplished and what to make of Kratochwil’s suggestions is the subject of the first contribution by Tanja Aalberts. Even though she agrees with Kratochwil’s overall argument, she finds the discussion unsatisfactory insofar as it repeats the old dogmas: the critique is directed at a hegemony that is thereby re-installed. Aalberts also wishes for a broader representation of various strands of interdisciplinary research and suggests that another story could be told insofar as both disciplines come to terms with the linguistic turn in parallel. From this perspective, inter-disciplinarity does not create a fusion of different horizons, but tells us something about our disciplinary blind spots, silences and common sense.
A legal perspective is provided by Wouter Werner who asks whether Kratochwil’s concept of law allows us ‘to go on’. While Werner agrees with Kratochwil that law has to be understood by how it works and what it does, rather than in terms of sterile abstractions, Werner casts doubt on whether it is possible to take the perspective of ‘practitioners’ fully as it is necessary to differentiate the question of what the law is from what it is for. These two dimensions can never be fully disentangled, and Werner shows how legal decisions also construct and interpret the changing international society in which law is assumed to be embedded. The law as practice therefore encompasses more than just finding ‘the law’ to make binding decisions.
Jens Bartelson moves the discussion to the boundary of international relations and international law by posing the question: How can an autonomy and authority of law be assumed when legal norms are in need of justification but foundations have disappeared? Starting with a historical discussion of how legal norms were justified, Bartelson agrees that norms depend on the historical context in which they are articulated. This implies that international law finds its validity arising not from some foundation or trans-historical source, but from legal practices themselves. Yet he strikes a more cautious note as law cannot be determined by legal practices alone. At this point, Bartelson identifies an ambiguity in the relationship between legal practices and their institutional background: a turn to practices cannot explain the legal institutional requirements in which practices take place. These need to be explained and justified independently of those practices. Bartelson wonders whether at this point, the linguistic turn has to face its own limitations.
The contribution by Oliver Kessler considers whether the constructivists’ interest in double contingency, order and change can be ‘filled’ completely with practice theories, or whether something else is needed that lies beyond pragmatism and practice. This contribution wonders whether ‘practice theories’ can sincerely tackle the question of ‘order’ where we need ‘collective singulars’ in order to understand how ‘law’ is separated from other social fields.
Footnotes
Acknowledgements
I thank Stefano Guzzini and Nik Rajkovic for being part of the panel which inspired this Forum, which took place at the International Studies Association (ISA) Conference in New Orleans, 18–21 February 2015. I also thank the editors of Millennium for their encouragement and support. Finally I want to thank the contributors to this Forum for their time and energy.
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.
1.
See Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989). Nicholas Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia: University of Southern California Press, 1989). Between 1989 and 2014, Kratochwil has focused more on articles and chapters than books. See for example the interesting collection in Friedrich Kratochwil, The Puzzles of Politics (London: Routledge, 2013).
2.
Friedrich Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (Cambridge: Cambridge University Press, 2014). For quite some time there were rumours that a new book was in the making. Interestingly enough, this long awaited book is, however, not The Status of Law, but still remains to be completed. Compared to the to-be-published volume on ‘practices’, The Status of Law was written rather quickly.
3.
The last meditation, Meditation 9, on the bounds of (non)sense summarises the debate as it discusses the fallacy of ideal theory and makes the plea for ‘diagnostics’. It thus links the discussion back to the first two Meditations.
4.
The title does relate to Richard Falk’s classic The Status of Law in International Society (Princeton: Princeton University Press, 1970), even though Kratochwil explicitly rejects such a close connection, see Kratochwil, The Status of Law, 1.
5.
Ibid., 1.
6.
Ibid., 39.
7.
Ibid., xiv.
8.
See also Friedrich Kratochwil and John Ruggie, ‘International Organization: State of the Art on the Art of the State’, International Organization 40, no. 4 (1986): 753.
9.
See Friedrich Kratochwil, ‘Of False Promises and Good Bets: A Plea for a Pragmatic Approach to Theory Building’, Journal of International Relations and Development 1, no. 1 (2007): 1–10.