Theories of law in international affairs

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Adv Anuradha Nashikkar

www.mediaeyenews.com

 

 One way to understand the proliferation of legal arrangements is to view them as an epiphenomenon of more basic relationships between states.

This is the position of scholars informed by structural realist theories: The interests of powerful states determine the content of international law, which in and of itself has little independent impact on behavior or outcomes. In conceptualizing ‘‘international regimes,’’ Stephen Krasner’s contribution in Part I of this volume sets forth this position in its pure form (Krasner 1982). Another selection in this volume, by Downs, Rocke, and Barsoom (1996), reflects similar skepticism about the extent to which international law has autonomous explanatory power. Other realist work, however, such as Steinberg (2002) and Garrett, Kelemen, and Schulz (1998) in this volume, affords some important functions to international law, while maintaining that law nonetheless reflects underlying power.

 Number of bodies Figure 2. Growth in International Judicial, Quasi-judicial, and Dispute Settlement Bodies 1900 2000 1910 1920 1930 1940 1950 1960 1970 1980 1990 80 70 60 50 40 30 20 10 0 Quasi-judicial and other dispute settlement bodies Judicial bodies xxxii Preface If law does simply reflect underlying power relationships, this raises the question of why states bother to create rules to order their interactions at all.

A rationalist institutionalist theory was offered in early form by Robert Keohane (1982), an excerpt from which appears in Part I of this volume. Using a rationalist logic that was built on the same assumptions employed by structural realism, Keohane showed that international institutions could facilitate cooperative, positive sum outcomes that would not otherwise occur. Keohane’s paradigmatic example was the prisoners dilemma, which he (and others following him) argued was a metaphor for much of international life.

Rationalist argumentation that infuses legal institutions with autonomous explanatory power has since been a mainstay of much IL/IR literature. Increasingly, rationalist institutionalist scholarship has shifted from questions about how international law matters to questions about why legal forms vary (see, e.g., Lipson 1991, in this volume) and why treaty design varies (see, e.g., Smith 2000 and Koremenos 2001, both in this volume). Much of the early rationalist work, whether realist or institutionalist, has treated states as unitary actors with interests that are exogenous to the argument.

This evades a crucial question: where do interests come from? Liberal theories offer an answer: ‘‘State interests’’ are best understood as an aggregation and intermediation of individual and group interests. International law in this view is driven from the bottom up. For example, a selection from Andrew Moravcsik in this volume argues that the European human rights regime expanded rapidly in the wake of the Cold War, as nascent democracies that supported human rights protection emerged in Eastern Europe (Moravcsik 2000). Liberalism may explain much of the content of international law, but it affords little autonomous role to law; however, when liberal processes are viewed as operating in the context of particular institutional arrangements, law may be afforded a crucial explanatory role.

For example, Slaughter and Mattli’s contribution to this volume shows how the ECJ offered a path for European interests that differed from the European Community’s legislative path, reconfiguring European interests in ways that reshaped outcomes (Slaughter and Mattli 1993).

Similarly, Keohane, Moravcsik, and Slaughter show how variance in the legal structure of international dispute resolution may explain the extent to which the various processes expand international law (Keohane, Moravcsik, and Slaughter 2000). Other selections in this volume, such as Goldstein and Martin (2000) and Gaubatz (1996), also combine liberal and institutional elements to generate interesting explanations. Preface xxxiii Influenced by postmodern social theory, constructivists delved even more deeply into the question: Where do interests come from? Constructivists launched an ontological attack on the rationalist work that preceded it, claiming that neither interests nor power exists independent of the social context in which actors are enmeshed. Interests and identity are constructed socially; they are plastic and may be redefined.

International law may be understood as both a reflection of identities and as a social artifact that reinforces identities, interests, and power. Variations on this view are articulated by several selections in this volume, including critiques of nonconstructivist approaches in Wendt (2001) and Finnemore and Toope (2001) and arguments about the importance of norms in shaping and understanding the operation of international law by Jackson (1987), Legro (1997), and Zacher (2001).

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