by Christian Brütsch and Dirk Lehmkuhl (eds). London and New York: Routledge, 2007. 244pp. Hardback. ISBN: 9780415423281. E-book format. ISBN: 020396442X.
Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk.
A typical work of contemporary international relations (IR) scholarship, LAW AND LEGALIZATION IN TRANSNATIONAL RELATIONS (LLTR) is a discreet looking, mid-size collection of ten standard-length essays, accompanied by an introduction and a conclusion, supplied by fifteen contributors from universities across Switzerland, Germany, US, Canada, and the Netherlands. The two main assumptions around which it has been put together are both essentially uncontroversial.
In the first place, the volume’s authors allege that “the economic, social and political globalization of the past few decades has accentuated the role of international norms and rules” in a way that the old assumptions of political realism dominant throughout most of the preceding half century no longer seem to be able to provide an adequate intellectual framework for understanding the basic character and logic of the global political process (p.1). In the second place, they suggest that a great deal of post-realist scholarship, while certainly giving rise to some impressive intellectual achievements that went a long way towards eroding the disciplinary hegemony of political realism, has by and large missed the main theoretical target in resolving the riddle of international norms and the associated phenomena of “legalization” and “juridification.”
The rationalist institutionalist camp, exemplified for the LLTR team by the likes of Kenneth Abbott and Duncan Snidal, has focused too much on theorizing the relationship between juridification and collective action problems. The constitutionalist camp, exemplified by such scholars as Bernhard Zangl and Michael Zürn, became too preoccupied with proving the existence of a single “complex architecture of global governance” (p.2). In the end, each strand managed, in its own way, to capture “the emergence of an increasingly ‘objective’ system of norms and rules” in the traditional international arena, but, crucially, failed to recognize “the emergence of transnational legalities,” “the asymmetries of power . . . produced by the more or less clouded shadow of hegemony,” and, with them, “the relevance of the capability of specific actors to influence outcomes and to determine which norms and rules eventually succeed in shaping different areas and dimensions of global governance” (pp.2-3). What came out as a result, in the LLTR team’s opinion, was, quite unsurprisingly, a fundamentally skewed understanding not only of the objective logic of the juridificationist trend itself, but also of [*21] the whole global scheme of the effective distribution of power and authority.
Seen against this background, the main objective for the present volume turns out to be very traditional. If the deadlock reached by the post-realist scholarship is to be broken, explain the authors of LLTR, the first step, quite obviously, must be to bring into the post-realist picture all those aspects of the juridificationist trend that have so far been left out of it. Once that goal is accomplished, the next step would be to try to make sense of all these hitherto overlooked aspects by developing new conceptual instruments and modifying the accompanying theoretical apparatus to produce better and more insightful descriptions of the general logic of the global political process (pp.1-7).
The underlying methodological assumptions which animate this approach are not, of course, difficult to recognize. Their source is the classical tradition of Anglo-American political science: discard every preconceived notion about social processes, relinquish all forms of aprioristic speculation, focus on the hard facts, trace only the evidently identifiable patterns, and the objective knowledge of the political reality will emerge before you in all its plenitude.
What role do international normative processes play in the contemporary political arena? According to conventional wisdom, an IR project which does not belong either to the institutionalist or to the constitutionalist schools would inevitably have to be a representative of the constructivist tradition. Not so, however, with LLTR. A steadfast dedication to hard-facts empiricism, an unwavering belief in the epistemological superiority of the inductive method, a firm commitment to hard-headed positivism – the epistemic conventions on the basis of which the authors of the present volume propose to carry out their inquiries all derive from that same “realist” model of IR thought whose intellectual horizon they assume to have left behind, but within which, together with all modern IR scholarship, they are inescapably trapped.
LLTR AND THE EMPIRICIST PROJECT IN IR SCHOLARSHIP
The first problem with LLTR’s declared choice of method is that it simply does not work. The volume is proposed to its readership as an empiricist study that can serve both an instrument of critical demystification (vis-à-vis all other post-realist approaches) and a foundation for a new act of political theorization (based on the back of that demystification). In the end, it gives both projects a good shot but, ultimately, manages not to accomplish either.
Some essays simply do not follow the empiricist canon. Take, for instance, “Beyond Legalization” by Mathias Albert (pp.185-201), which starts, more or less, by declaring that all the numerous, variegated processes of contemporary juridification should be studied on the basis of Niklas Luhmann’s systems theory. Why? On the basis of what logic? Why this and not some other theoretical model? None of these questions, surprisingly, are elucidated or addressed at any point. The only glimpse of a possible explanation comes in the brief remark in the essay’s opening section stating that “the systems-theoretical tradition of Niklas Luhmann offers a promising strategy to [*22] synthesize the many facets of international legalization in a theoretically coherent fashion” (p.186). Theoretical coherence? Is this not a virtue more commonly associated with the tradition of logical formalism as opposed to realistic empiricism? Even then, how exactly would the assumption of a systems-theoretical approach à la mode Luhmann enable a better and more coherent understanding of “international legalization”? Beyond a series of highly abstract comments about the recent developments in EU law and “the increasing ‘legalization’ of various fields of social relations” (pp.192-195) – none of which, incidentally, has anything to do with the systems theory analytic – the author offers no evidence, illustrations, or proof to support this conclusion. Indeed, the only thing, it seems, the essay succeeds in proving and illustrating is that its author has a rather high opinion of systems theory and its representatives but very little time for empiricism and the empiricist canon.
Then again, bearing in mind the subject matter of LLTR’s general inquiry, even if he did use that canon, that, too, could certainly be regarded as deeply problematic. An empiricist study of “international legalization” – consider the full implications of going after that kind of target.
To be sure, the main problem here is not simply that empiricism, as Fredric Jameson once put it, seeks “to isolate the individual datum in such a way that its relationship to the totality never has to be dealt with because the latter never comes into view” (Jameson 1972, at 210). An inevitable outcome of that, of course, is the complete loss of any capacity for self-awareness and critical reflectivity but nothing more easily noticeable. By ignoring the basic commonsensical idea that the immediate registration of the most self-evident appearances should not necessarily lead to an exceptionally sound understanding of the related phenomena, empiricism not only overlooks the question of its own fundamental presuppositions, but also loses the opportunity to examine the actual logic by which these phenomena come and pass from existence, that is, the real processes of their being and transformation. But it does not, for all that, lose its mass appeal, since that, to a very large degree, is premised on its ability to make complex things look delightfully simple – and in this empiricism, as the “realists” have shown, has very few rivals.
Certainly, the inability of a method to reflect on its own epistemological assumptions can be considered a very grave defect in modern social sciences. Had LLTR been a work produced in the genre of social theory this would certainly raise a plethora of heavy and unpleasant objections. But when has methodological unsoundness ever been a bar to publishing books about international politics? No, the real reason why LLTR’s commitment to empiricism looks so awkward in the context of contemporary scholarship on the subject of juridification and the role of international normative processes lies in a completely different dimension. A steadfast dedication to naked-facts empiricism may seem essentially routine and completely unremarkable in the intellectual climate of the traditional Anglo-American political science discourse, but it sits very ill at ease in the context of most modern-day socio-legal scholarship, what with all the insights [*23] supplied by Rorty, Foucault, and the CLS.
Admittedly, one can, indeed, find a large amount of valuable factual material in LLTR’s pages. The essays on the global spread of financial reporting standards (pp.33-57) and the patterns of private regulation in organic agriculture (pp.101-120) are particularly outstanding in this regard, and the chapter on the relationship between industry-led programs and state governance in the areas of forestry certification, fisheries, and mining (pp.121-143) is also quite good. The wealth of thick descriptions and historical evidence offered in these sections certainly lives up to the editors’ promise to bring back a whole mass of facts that had previously been left out of the mainstream accounts of the global political process. But none of this, in the end, adds up to a satisfactory empirical account.
The first reason for this is very easy to identify. The essays in question simply operate with too many abstractions. Even at its empirical best, all LLTR’s claims to empiricism are based on the presumption that its readers would never recognize that terms like “civil society” or “international community” essentially represent nothing but discursive fictions, not empirical realities, and that the implicit background referents for “international law” and “legalization” quietly change several times from one part of the volume to another.
But ontological carelessness is not the only one of LLTR’s methodological problems. Another reason why it feels so difficult to consider its take on the subject of international juridification to be empirically accurate – even as an act of criticism aimed to debunk other, equally theoretically flawed presentations – comes from the sheer complexity of the general factual material with which it deals.
Take, for instance, the story of forest certification (pp.122-132). The existing international system for certifying sustainably produced timber is coordinated, by and large, by the Forest Stewardship Council (FSC), an international alliance of private organizations, businesses, and NGOs, created in the early 1990s and spearheaded on the ideological front by the Worldwide Fund for Nature. An earlier attempt to create a similar system, centered on the International Tropical Timber Organization (ITTO) – a classical international organization that includes about 40 of the world’s largest timber-trading nations – had generally failed. What was the reason behind that failure? The view offered by the LLTR contributor suggests that a group of largely Southern nations had considered it as an essentially discriminatory measure designed to discipline the newly decolonized South by creating another non-tariff barrier which the industrial North could use to protect its markets against Southern imports (p.122). Provided this interpretation of events is accepted as factually correct (it does not have to be), what can then be the empirical reality of the FSC initiative as an element of the international political landscape? If the ITTO initiative was indeed a veiled attempt aimed at strengthening the North’s hegemony over the South, then the most logical explanation for the FSC system, considering its connections to Northern importers and “high end wood buyers” (p.122), would be that it marks the [*24] continuation of the same trend, only by a different (somewhat more nuanced) means. Is this the view which the LLTR contributor takes on the question? Not at all. His choice is to describe the FSC as a “small progressive coalition” concerned with “the problems of tropical ecosystem destruction and biodiversity loss” (pp.122-123). His support for that choice? Evidently, nothing but his faith and I-just-know-it-style blunt assertions.
Now, an easy conclusion to this observation would be to denounce that account as politically biased and empirically inaccurate. But it would hardly be very intelligent. The real irony of the present situation does not come from the fact that the author had chosen a less legitimate interpretation of events over a more legitimate one, but from the fact that neither interpretation is more legitimate than the other: the FSC, at least from one angle, is, indeed, a progressive coalition of transnational NGOs, and the “North” and the “South,” after all, are also nothing but convenient discursive fictions – all of which raises a number of important points that have repercussions for the immediate volume under consideration and for the field of contemporary IR scholarship as a whole.
First, if the general critical remarks about LLTR’s foray into empiricism made above are at least basically correct, it would seem to be essentially impossible to produce any kind of satisfactory inquiry into the phenomenon of international juridification on the basis of an empiricist methodology. The matters in question are simply far too abstract. They cannot be apprehended without an aprioristic assumption of some unempiricizable theoretical framework.
Secondly, even if the problems of excessive abstractions and overenthusiastic reliance on discursive fictions were solved, the use of an empiricist methodology to investigate global political processes would still be essentially pointless. The factual materials with which one must deal are open to so many different, mutually irreconcilable interpretations that, in the end, none of these interpretations could look sufficiently convincing to qualify as an empirically accurate portrait of the described set of events, all the while each of them would still be convincing enough to destabilize and undermine a similar claim on the part of its rival.
Thirdly, where an accurate, truthful account of the described set of events is shown to be structurally impossible, the discourse in question inevitably has to be regarded as an ideologically-biased discourse. Considering that the previous observation applies not only to LLTR but to the whole field of contemporary IR scholarship, it follows inevitably that the latter’s claim to “scientificity” is profoundly spurious and that it belongs, essentially, in the same field as political debates and spin-doctoring.
LLTR AND THE PREDICAMENTS OF IR THEORY
Like most other post-realist IR writings, one of the most abiding impressions LLTR leaves as a work of international theory (to use Martin Wight’s terminology) is, probably, that of an intellectual Icarus: carried away by its ambitions, it rises too high for its fragile wings to endure. Even if the factual materials supplied by the “empirical” parts of the collection had been sufficient to underwrite a successful critique of all the various myths of [*25] realist and post-realist scholarship against which it was supposedly put together (pp.1-3), the theoretical superstructure eventually erected on their basis would have still sunk it the moment it hit the waters of attentive reading.
To be sure, the basic intuition behind introducing the collection’s central concept “complex legalization” (pp.9-32) was probably correct. It does not make sense, in the face of all the available evidence, to pretend that juridification is not an essentially heterogeneous process. The theoretical effort that went into developing that intuition, judging by the book’s narrative patterns, was, however, manifestly insufficient.
Despite its repeated use across several essays, at no point in the collection does the essential semantic core of “complex legalization,” or, for that matter, its basic empirical referent, seem to become clear. What exactly does it represent: a process, a project, an epistemic framework, an era, or a cultural shift? In what way is it different from “simple” legalization? Does it refer to the same general phenomenon as the idea of legal pluralism? Does the structure of the complexity in question follow the structure of an existing positive legal system (if so, then which?) or is it dictated by some extra-legal factors?
After going through all the different uses to which the term is put across the volume’s “theoretical” part, the most obvious conclusion, in the end, seems to be that, all the pretensions to the contrary notwithstanding, “complex legalization,” for the LLTR theorists, is ultimately just a convenient catch-all category, a multi-purpose signifier deployed to plug whatever gaps had been left open after all other post-realist theories were dismantled and set aside. Soft law, jus cogens, “interlegality,” hybridization, industry standards, ILO declarations, transgovernmental networks, “best practices,” Weltinnenrecht, “norms and ideas for political deliberation” – every phenomenon whose connection to law looks even remotely plausible seems to fit under the elastic roof of “complex legalization.” As a result, by the time one reaches the final pages, it still continues to remain essentially unclear what particular objective the introduction of the concept of “complex legalization” was supposed to accomplish, let alone what new analytical task it was supposed to perform that is not already performed by other, “older,” concepts.
It may very well be true that the fabric of world politics is permeated with “multiple legalities with different scopes and aims” (p.26). But it is, of course, one thing to declare that and quite another to explain what exactly it may be that makes all the numerous social forms included under this rubric part of the same conceptual category. In the absence of such an explanation, however, what could be the reader’s immediate reaction? When the boundaries are not drawn, what guarantee is there that anyone even knows where they lie? A term that can potentially mean everything can hardly make a useful theoretical instrument. When the ontology of “law” becomes so elastic that it becomes unclear what goes under “law” and what constitutes a different social form, the category of legalization cannot but turn analytically [*26] useless. When that happens, where does that leave a volume such as LLTR?
In a way, this predicament can, perhaps, be explained as a kind of growing pains syndrome: the old theory of juridification is no longer adequate to describe the contemporary political processes, but a new theory has not yet been put together. What results – a kind of intellectual interregnum – is a phase dominated as much by brilliant insights as pandemic confusion and arbitrary eclecticism. But to insist on extending this explanation across the board would be certainly too generous. Many of LLTR’s slips come from significantly less cosmic causes.
Take, for instance, the traditional (for most modern IR works) refusal to “creat[e] a single set of hypotheses to interpret different legal and law-like arrangements” and thus to “identify a uniform pattern common to the different moves to law” (p.12). Taken by itself, such a stance obviously has a lot going for it. But not if it is accompanied by an immediate decision to describe the juridificationist trend in international politics “in terms of multiple . . . legal realms or ‘legalities’” (p.12). How can one avoid creating a single set of hypotheses and imposing a uniform pattern on the described phenomena if one has already described them all as essentially legal realms? Unless, of course, the term “law” and all its derivatives are expected to have no settled semantic core.
The further one delves into LLTR’s “theoretical” part, the harder the going becomes. Consider, for example, the essay on “how global standards work” (pp.144-165). With its sweeping, intricate taxonomy of different types of “standards,” their characteristics, and their functions, it manages in the end to obscure more about the logic of “complex legalization” than to reveal, not least thanks to a certain propensity (again, typical of most modern IR scholarship) for self-validating formalism reminiscent of the halcyon days of the New Haven school with their Porphyrian tree of world order goals, functions, tasks, values, and analysis phases (McDougal, et al. 1969). Metaphysical hypostatization may have been a respectable intellectual practice in medieval theology – where, reportedly, it gave rise to some inspired debates about the number of angels that could stand on the point of a needle – but in today’s world it runs counter to every principle of serious socio-scientific scholarship, from whose point of view it looks an obscurantist, mystificationist “transcendental nonsense” (Cohen 1935).
The essay immediately following that, “International Standards: Functions and Links to Law,” illustrates another problematic side of LLTR’s theoretical part (and with it of a great deal of modern IR scholarship with its epochal discovery that international law actually often matters and that there is, in fact, more than one kind of legal norms in operation in the international arena). Put crudely, it constantly alternates between a rich mix of bland truisms and a steady stream of gawky inaccuracies and passages which suggest that either its author did not really know what to say about the subjects he chose to discuss or nobody told him that he was reinventing a wheel (and was not doing it particularly well at that). The curiously aimless remarks about customary [*27] international law (p.172) and substantive generality as the characteristic feature of legal norms (p.174) particularly stand out in this regard. Both look so strikingly devoid of any point, the greatest challenge about them is to understand how one is supposed to respond to them: treat them as enormously long typos, dismiss as momentary lapses of reason, or ignore in silent embarrassment.
The same, for a slightly different reason, goes for the passages discussing the internal logic of lawmaking. What scholarly purpose are statements like “[t]here are cases in which rule-making in the legislative process is too costly” (p.175) or “[d]raftspersons are primarily interested in the functioning of the regime they are designing” (p.169) supposed to serve? Both of them are introduced, in the context of the essay’s narrative, as analytical insights, rather than passing observations or the starting premises of a larger argument. Had LLTR been marketed as an undergraduate-level textbook, the staging of such comments as important theoretical discoveries, presumably, could have been justified in view of the target readership’s projected level of sophistication. Considering, however, that the volume in question is clearly aimed at an audience with a generally advanced understanding of the subject, the shallowness of the narrative seems quite incomprehensible. There is a fine line between commonsensical and banal. The essay under discussion crosses it with disturbing regularity.
As do, indeed, most other “theoretical” essays in the collection which consistently combine banality with glaring inaccuracies and sweeping generalities uncharacteristic of responsible scholarship. However liberal an interpretation one may take of the current US opposition to the International Criminal Court, the Court did not “c[o]me into existence . . . against [its] will” (p.193). The US had taken active part in drafting and negotiating the Court’s Statute, and Bill Clinton, indeed, had signed the Statute in December 2000.
In the end, what makes slip-ups like this all the more frustrating, however, is not that they normally would have been so easy to avoid – it does not take much time or special knowledge of the subject to find out about the role the US played in bringing about the ICC throughout the 1990s – but rather that taken together they highlight one of the most important facts about modern IR scholarship: the moment one steps outside the narrow box of disciplinary solipsism, most contemporary IR-theoretical works reveal themselves to be more remarkable for what they manage not to say than for what they do.
In the present instance, the single greatest omission of the LLTR team – a design flaw characterizing the whole project rather than just the surface of the book’s narrative – was, probably, the failure to recognize the affinity of their project with the general projects of legal pluralism, American legal realism, neo-Marxism (especially those strands of it which focus on the role of the transnational capitalist class – see, e.g., Chimni 2004; Sklair 2001), and, most importantly, the whole discipline of modern international law.
With the exception of the first chapter, one can find virtually no references to any works by international or [*28] comparative lawyers in LLTR. In the whole collection, there are only two mentions of Harold Koh’s work, despite the hundreds of pages he wrote describing and theorizing the logic of the transnational legal process (see, e.g., Koh, 1996), and none of any of the New Approaches to International Law (NAIL) writings, despite the numerous books and articles the NAIL scholars have published on the subjects of juridification, international normativity, and law and globalization (see, e.g., Kennedy, 2005; Chimni, 2004; Trubek et al., 1994).
THE MISSED OPPORTUNITIES (AN ALTERNATIVE FUTURE)
Book reviews should never be written in the language of “ought.” Sometimes, however, it could make sense to try to imagine a set of possible alternatives, if only in order to recognize the scope of the missed opportunities better, so as to draw some practical lessons for the future. How would LLTR have turned out, had the omissions mentioned earlier not taken place?
Perhaps, recognizing the parallels between their project and the basic ideas of legal realism would have helped the LLTR team to develop a more sophisticated understanding of the socio-scientific method, avoiding the metaphysical mystifications described earlier. Perhaps, admitting a certain affinity with the neo-Marxist tradition would have helped them to draw their attention to the theoretical value of the class analytic and the importance of economic imperialism in the study of international juridification. Turning to thinkers like Nicos Poulantzas (Poulantzas, 1980), for example, could have helped develop the point that private norm-production in the conditions of capitalist globalization can constitute as much “a tool of global policymaking” in the service of the Western trading blocs (pp.50-52) as a site for the condensed unfolding of political contradictions and continuous struggle between their different segments.
Perhaps, by acknowledging the various achievements of colleagues working in “sister disciplines,” the LLTR authors could have saved themselves the embarrassment of appearing to claim credit for reinventing the wheel and fighting windmills for giants. A great deal of the rhetorical dynamic underlying the volume’s theoretical elaborations seems to be fuelled by the implicit belief that a vast majority of people who think and write about global legal processes are diehard followers of H.L.A. Hart who did not get past the first half of CONCEPT OF LAW.
Perhaps, if the theorists on the LLTR team had cast their theoretical net slightly wider, they would have discovered some of those brilliant recent studies carried out on the subject of legal globalization by legal historians and comparative lawyers (see, e.g., Kennedy 2006). Similarly, if they had retained a systematic engagement with the legal pluralist debate, while it would almost certainly result in a considerable complexification of the book’s narrative, could have helpfully prepared them for some of the well-known pitfalls of the functionalist theory of juridification, not least the classical trend of functionalist jurisprudence to seek contradictorily both to break free from the shackles of ontological essentialism and to retain its [*29] analytical paraphernalia for discursive convenience.
For good or ill, however, all this remains now only in the realm of empty speculations. What remains in the actual reality is a book that very certainly could have become so much more than it ended up being, but which has, perhaps, become more representative of the intellectual zeitgeist of its disciplinary field than the latter’s ideological elites would probably find it comfortable to admit.
Chimni, B.S. 2004. “International Institutions Today: an Imperial Global State in the Making.” 15 EUROPEAN JOURNAL OF INTERNATIONAL LAW 1-38.
Cohen, Felix S. 1935. “Transcendental Nonsense and the Functional Approach.” 35 COLUMBIA LAW REVIEW 809-849.
Jameson, Fredric. 1972. THE PRISON-HOUSE OF LANGUAGE: A CRITICAL ACCOUNT OF STRUCTURALISM AND RUSSIAN FORMALISM. Princeton: Princeton University Press.
Kennedy, David. 2005. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM. Princeton: Princeton University Press.
Kennedy, Duncan. 2006. “Three Globalizations of Law and Legal Thought: 1850-2000.” In David M. Trubek and Alvaro Santos (eds), THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL. Cambridge: Cambridge University Press.
Koh, Harold Hongju. 1996. “Transnational Legal Process.” 75 NEBRASKA LAW REVIEW 181-206.
McDougal, Myres S., Harold D. Lasswell, and Lung-chu Chen. 1969. “Human Rights and World Public Order: A Framework for Policy-Oriented Inquiry.” 63 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 237-269.
Poulantzas, Nicos. 1980. STATE, POWER, SOCIALISM. New York: Schocken Books.
Sklair, Leslie. 2001. THE TRANSNATIONAL CAPITALIST CLASS. Oxford: Blackwell Publishing.
Trubek, David M., Yves Dezalay, Ruth Buchanan, and John R. Davis. 1994. “Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas.” 44 CASE WESTERN RESERVE LAW REVIEW 07-498.
© Copyright 2008 by the author, Akbar Rasulov.