realists, are said to exist ‘when two or more states have sufficient con-tact between them, and have sufficient impact on one another’s deci-sions, to cause them to behave – at least in some measure – as parts of a whole’.43 The latter, stressed differently by rationalists and con-structivists, exist ‘when a group of states, conscious of certain common interests and common values, form a society in the sense that they con-ceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions’.44 There is some debate about the precise relationship between these in-ternational formations: are there any historical examples of enduring international systems? Do international systems necessarily precede the development of international societies? Can international systems and societies coexist in time and place? While scholars are divided over these issues, they agree on one central point. An international society can be said to exist when states mutually recognise each other’s rights to sovereign authority, when sovereignty comes to be based less on states’ material capacities to defend their independence than on insti-tutionalised rules, such as non-intervention, non-aggression, and self-determination.45
This socially constitutive process of mutual recognition invariably in-volves the politics of identity. Not all polities are recognised as sovereign by the extant members of an international society. The distribution of sovereign rights has historically been closely related to prevailing ide-als of legitimate statehood, and how these ideide-als are defined, mobilised, and challenged has been central to international politics. Europe’s im-perial powers went so far as to codify in international law a ‘standard of civilisation’ that defined which non-European polities would be granted membership of the expanding society of states.46 First-wave post-colonial states and nationalist movements subsequently turned the liberal ideals underlying this standard against the imperial powers, dis-crediting imperialism as a fundamental violation of emergent human
43 Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 2nd edn (London:
Macmillan, 1995), p. 9.
44 Bull, The Anarchical Society, p. 13.
45 See Barry Buzan, ‘From International System to International Society: Structural Real-ism and Regime Theory Meet the English School’, International Organization 47: 3 (1993);
Alexander Wendt, ‘Anarchy is What States Make of It: The Social Construction of Power Politics’, International Organization 46: 2 (1992); and Robert Jackson, Quasi-States:
Sovereignty, International Relations, and the Third World (Cambridge: Cambridge University Press, 1990).
46 Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press, 1984).
rights principles and licensing wholesale decolonisation.47 Since then we have witnessed the progressive, if controversial, embedding of lib-eral ideals of legitimate statehood, expressed in everything from the principles of ‘good governance’ promoted by the World Bank and In-ternational Monetary Fund (IMF) to the creation of the InIn-ternational Criminal Court. Far from an aberration, variants of this idiographic politics have marked the development of all historical international societies.
Through the idiographic politics of recognition international societies evolve constitutional structures, defined as ‘coherent ensembles of in-tersubjective beliefs, principles, and norms that perform two functions in ordering international societies: they define what constitutes a legit-imate actor, entitled to all the rights and privileges of statehood; and they define the basic parameters of rightful state action’.48It is useful to conceive of these structures as comprising three normative components:
a hegemonic belief about the moral purpose of the state; an organising principle of sovereignty; and a norm of procedural justice. Sovereignty is usually considered the grundnorm of international society, but the pol-itics of recognition means that it is always conjoined, in practice, with a discourse of legitimacy, with a set of arguments about ‘good’ states and their entitlements. We see this in the anti-liberal, anti-nationalist discourse of the ancien r´egime, as well as in contemporary claims of as-cendant liberal states. While such discourses are always contested – as the ‘Asian values’ critique of universal human rights and the Islamic fundamentalist critique of all things ‘Western’ attest – in stable interna-tional societies they take a hegemonic form, with alternative conceptions of legitimate statehood assuming a counter-hegemonic, oppositional character. The crucial point for our purpose is that different conceptions of the moral purpose of the state generate different norms of procedural justice that, in turn, license distinctive institutional forms of co-operation among states. Absolutist conceptions of legitimate statehood, which at-tributed monarchical rights to divine will, spawned an authoritative norm of procedural justice that licensed ‘naturalist’ international law and ‘old’ diplomacy.49
47 Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’, Review of International Studies 27: 4 (2001).
48 Reus-Smit, The Moral Purpose of the State, p. 30. Also see Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton: Princeton Univer-sity Press, 2000).
49 Reus-Smit, The Moral Purpose of the State, chapter 5.
International relations scholars are not accustomed to speaking of fundamental changes in relations among states, preferring instead to emphasise continuities and eternal rhythms. When they do speak of epochal transformations, they focus almost exclusively on the advent of sovereign states that accompanied the Peace of Westphalia in 1648.
Yet an equally important rupture in international society occurred in the Age of Revolutions (1776–1848). ‘From the mid-eighteenth century onward,’ Mlada Bukovansky writes, ‘the political struggles of Euro-pean and American aristocrats against the perceived despotism of their monarchs yielded a profound shift in how both leaders and subjects came to view the sources and terms of political authority. Bloodlines and divine sanction began to lose their symbolic power as sources of legitimacy; popular will – however nebulously defined – began its ascent at the ultimate source of legitimate authority.’50 In time this produced a qualitatively new international society, marked by a distinctive con-stitutional structure. The moral purpose of the state was increasingly defined in terms of the protection of individuals’ rights and the aug-mentation of their interests. Monarchical sovereignty was displaced by popular sovereignty, and the authoritative norm of procedural justice – which saw the will of God, and by extension that of sovereigns, as the only legitimate source of rules and law – was replaced by a legislative conception. Henceforth, rules would be deemed legitimate only if they were authored by those subject to them (or by their representatives), and if they applied equally to all citizens in all like cases.
Rousseau famously asserted these principles of procedural justice when he wrote that ‘Legislative power belongs to the people and be-longs to it alone’, and that law should treat ‘the subjects as a body and actions in the abstract, never one man as an individual, or a particular action’.51 From the late eighteenth century onward, these ideals came to inform international legal theory, ushering in the ‘positive’ turn in international law. Rejecting the idea that natural law provided a reliable source of the law of nations, Robert Ward argued that only real, existing treaties, conventions, and customs provided a ‘fixed and definite’ foun-dation for such law, as they reflected the consent of states.52G. F. von
50 Mlada Bukovansky, Legitimacy and Power Politics: The American and French Revolutions in International Political Culture (Princeton: Princeton University Press, 2002), p. 3.
51 Jean-Jacques Rousseau, ‘On Social Contract or Principles of Political Right’, in Alan Ritter and Julia Conway Bondanella (eds.), Rousseau’s Political Writings: New Translations, Interpretive Notes, Backgrounds, Commentaries (New York: Norton, 1988), p. 106.
52 Robert Ward, An Enquiry into the Foundations and History of the Law of Nations from the Time of the Greeks to the Age of Grotius, Volume 1 (London: Butterworth, 1795), p. xxxvi.
Martens claimed, similarly, that concrete accords were the only source of legal obligation because they represent the ‘mutual will of the nations concerned’.53 Though revolutionary when first articulated, these ideas came to have a deep, constitutive impact on the modern institution of international law, conditioning its form and practice in distinctive ways.
As the preceding discussion indicates, the modern legislative norm of procedural justice incorporates two principles: the principle of self-legislation (that the people or their representatives must define the laws that bind them), and the principle of non-discrimination (that all must be subject to the law equally, and that all cases must be treated simi-larly). These principles have had a profound and enduring effect on the institutional form of the modern international legal order. They have helped constitute a system with four central characteristics: a discourse of institutional autonomy, a multilateral form of legislation, a distinc-tive language and practice of justification, and a horizontal structure of obligation.
The discourse of institutional autonomy
The arguments advanced in this chapter suggest that the search for a clearly delineated boundary between the political and the legal in inter-national relations is a problematic exercise.54Politics is a form of reason and action that generates multiple institutional imperatives, and be-cause of this, institutional practices such as modern international law are deeply structured and permeated by politics. It is important to re-member, however, that institutions are created by political actors as structuring or ordering devices, as mechanisms for framing politics in ways that enshrine predominant notions of legitimate agency, stabilise individual and collective purposes, and facilitate the pursuit of instru-mental goals. Politics thus structures and permeates institutions, but institutionalised politics necessarily differs from non-institutionalised politics. Politics in a world without institutions – difficult as it is to imagine – is different to that in a highly institutionalised world.
Recognising that politics has constituted the international legal sys-tem, but is in turn transformed by that syssys-tem, is crucial if we are to comprehend one of the most important features of modern interna-tional law – its discourse of instituinterna-tional autonomy. The fact is that in-ternational political actors behave as though the legal realm is separate
53 G. F. von Martens, Summary of the Law of Nations Founded on the Treaties and Customs of Modern Nations (Philadelphia: Thomas Bradford, 1795), pp. 47–8.
54 See Wayne Sandholtz and Alec Stone Sweet, chapter 10, this volume.
from the political. As other contributors demonstrate, in a wide range of contexts political actors have spoken and acted as if at some point in a negotiation, at some stage in a crisis, action moved from the po-litical to the legal realm, a realm in which different types of argument and practice prevail.55 The nature of these arguments and practices is considered in a subsequent section; what is important here is that a distinctive type of politics has encouraged states and non-state actors to imagine a realm of institutionalised action in which certain ‘political’
types of behaviour are foreclosed and other ‘legal’ types are licensed and empowered.
The imagination of such a realm is functionally advantageous, as the habits of mind, modes of discursive engagement, and routinised prac-tices that it engendered have assumed a structural form in modern in-ternational society, facilitating order by channelling actors’ conduct in distinctive ways. But this instrumental benefit is not sufficient to explain the constitution of such a realm. For that we must return to the modern, legislative norm of procedural justice and its roots in post-absolutist ideals of legitimate statehood. In the Age of Absolutism, politics and law were conjoined in the figure of the sovereign, and the metaphysical precepts of divine and natural law provided theoretical, if not practi-cal, breaks on the abuse of power. The revolutionary rejection of this model of state and political legitimacy demanded new ways of thinking about the relationship between politics and law, resulting in the liberal conception of sovereignty. Under the norm of procedural justice that accompanied this conception, the principle of self-legislation sought to conjoin politics and law in the legislative realm, while the principle of non-discrimination radically separated them in the realm of interpre-tation and adjudication. Parliament is simultaneously a political and legal realm, but the courts are idealised as a purely legal realm. Spurred on by the general fragmentation of knowledge into discrete disciplines that accompanied modernity, these ideas not only encouraged the view of politics and law as separate domains of human action, but also as separate fields of scholarly enquiry.
Viewed from this perspective, the discourse of institutional auton-omy that characterises modern international law is less surprising.
Sacral metaphysics were as vital to naturalist international law as they were for municipal law, and their fall provoked a similar crisis of le-gal authority. As we shall see in the following section, the principle of
55 See chapters 3, 7, and 8, this volume.
self-legislation eventually conjoined politics and law in the practice of multilateralism. The two have been attenuated, however, in the field of problem or issue definition, and quarantined in the realms of inter-pretation and adjudication. It matters to international actors whether a problem or issue is defined as political or legal, and while power and self-interest are at play in the politics of definition, the framework of existing legal norms, and the modes of argument that enliven them, discipline that play. Once it has been commonly acknowledged that a problem or issue is legal, in the sense of being governed by a pre-existing set of norms, the narrowly defined politics of power and self-interest in delegitimised and communicative action is empowered. One might ask why actors are drawn to such a legal realm, where the exer-cise of naked power and self-interest are foreclosed. The answer lies in the politics of both legitimacy and pragmatism. Because international law is a normative order, casting claims in the language of law asso-ciates interests and strategies with the norms of international society, conscripting the power of social opinion to one’s cause. And because norms are guides to action, defining a problem or issue as legal re-duces opportunity costs by invoking standardised, socially sanctioned solutions.
The multilateral form of legislation
If legislation is the formulation and enactment of legally binding rules (as is commonly defined), then it is as much a part of international life as life within the state. One of the principal activities occupying international actors is the negotiation of new rules to govern their ex-ternal and inex-ternal conduct in a wide range of issue areas. Much of this is informal, involving the gradual accretion of new norms through argument, learning, and repeated practice. These processes are cru-cially important, as they are the principal means by which custom-ary norms of international law evolve. ‘Despite (or because of) their informal origins, rules of customary international law provide substan-tive content to many areas of international law, as well as the procedu-ral framework within which most rules of international law, including treaty rules, develop, exist and change.’56 States also engage in more formal modes of legislation, the most common and distinctive being multilateralism.
56 Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999), p. 3.
Again, the contrast with the absolutist period is illuminating. Con-trary to suggestions that multilateralism was an inevitable consequence of the rise of a system of sovereign states and the attendant need to sta-bilise territorial property rights,57 it was a relatively marginal institu-tional practice up until the middle of the nineteenth century, after which the number of multilateral treaties greatly multiplied.58 Bilateralism, integral to the practice of ‘old’ diplomacy, was the principal mode of co-operation and norm development. The major peace settlements that defined the scope and extension of territorial rights in Europe, princi-pally those of Westphalia and Utrecht, were in essence aggregations of separately negotiated diadic agreements.59
It was only with the shift in the terms of legitimacy that accompanied the rise of popular sovereignty and its associated norm of procedural justice that multilateralism became the preferred mode of rule enact-ment. The principle of self-legislation mandates that those subject to the law should be its author, and the principle of non-discrimination de-mands reciprocal commitments and equal application. John Ruggie has observed that precisely these principles lie at the heart of multilateral-ism. ‘Multilateralism is an institutional form that coordinates relations among three or more states on the basis of generalised principles of conduct: that is, principles which specify appropriate conduct for a class of actions, without regard to the particularistic interests of the parties or the strategic exigencies that may exist in any specific occurrence.’60 The centrality of the modern norm of procedural justice to the multi-lateral mode of international legislation is clearly evident in the current tensions between Washington and the vast majority of other states over new developments in international law, including everything from the ban on anti-personnel landmines to the creation of the International Criminal Court. It is Washington’s insistence on special protections and exceptions, and the equal insistence of other states on reciprocally binding rules, that has ‘forced’ the United States to exit from the new regimes.61
57 John Gerard Ruggie, ‘Multilateralism: The Anatomy of an Institution’, in Ruggie (ed.), Multilateralism Matters.
58 Vaclav Mosteky, Index of Multilateral Treaties: A Chronological List of Multi-Party Interna-tional Agreements from the Sixteenth Century through 1963 (Cambridge, MA: Harvard Law School Library, 1965).
59 Reus-Smit, The Moral Purpose of the State, chapter 5.
60 Ruggie, ‘Multilateralism’, p. 11.
61 For an extended discussion of these issues see Christian Reus-Smit, American Power and World Order (Cambridge: Polity Press, 2004).
The language and practice of justification
If one of the principal features of the international legal order is its dis-course of institutional autonomy, what is it that distinguishes this ‘au-tonomous’ institutional realm? The realist answer is that legal systems are distinguished by clear lines of centralised authority and enforce-ment, both of which are said to be lacking in the international legal order. This view has been widely criticised, however, because it misun-derstands the nature of domestic legal systems, in which decentralised modes of interpretation and compliance are crucial, and because it un-derestimates the sources of authority and modes of enforcement that can evolve in anarchical systems. The rationalist answer – most clearly articulated in the ‘Legalization and World Politics’ volume – is that a regime of rules and norms becomes legalised when its rules are precise, it imposes strong obligations, and it delegates interpretive authority to third parties.62 In other words, the legal realm is the realm of formal, enforceable contract. This criterion of demarcation fails, however, when we consider the importance of customary norms to the international legal order.63Very often the content of these norms lacks precision, their obligations are strong but not grounded in contract, and they are inter-preted and applied not through formal mechanisms of adjudication or arbitration but through social discourse and argument.
As noted earlier, constructivists are unclear about what distinguishes the legal realm from the broader fabric of international social norms.
Some deny that there is any meaningful difference, others see legal rules as more specified and codified, while still others emphasise the distinctive nature of legal discourse. Among those who have consid-ered the issue most closely, it is this latter argument that is most widely embraced. Kratochwil, for instance, argues that ‘the legal character of rules and norms can be established when we are able to show that these norms are used in a distinct fashion in making decisions and in commu-nicating the basis of those choices to a wider audience’.64‘This norm-use obtains its coherence and characteristic as a distinct phenomenon from a peculiar style of arguing, which is transmitted through the “training”
of the practitioners.’65 It is this view of international law that comes through most prominently in the following chapters. In diverse issue-areas, contributors show that actors enter the realm of international law
62 ‘Legalization and World Politics’.
63 Finnemore and Toope, ‘Alternatives to “Legalization”’.
64 Kratochwil, Rules, Norms, and Decisions, p. 42.
65 Kratochwil, Rules, Norms, and Decisions, p. 211.
when they feel impelled not only to place reasoned argument ahead of coercion but also to engage in a distinctive type of argument in which principles and actions must be justified in terms of established, socially sanctioned, normative precepts.
It is important to recognise here, as Nicholas Wheeler stresses in chap-ter 8, that inchap-ternational law is a process. Actors assume the existence of a set of socially sanctioned rules, but international law ‘lives’ in the way in which they reason argumentatively about the form of these rules, what they prescribe or proscribe, what their jurisdictional reach is, what new rules should be enacted, how these relate to established rules, and about whether a certain action or inaction is covered by a given rule. This reasoning is rhetorical in nature. ‘[L]egal arguments deal with the finding and interpretation of the applicable norms and procedures, and with the presentation of the relevant facts and their evaluations. Both questions turn on the issue of whether a particular interpretation of a fact-pattern is acceptable rather than “true”; conse-quently strict logic plays a minor role in this process of “finding the law”.’66Legal reasoning is also analogical. As Kratochwil observes, ‘the task of analogies is to establish similarities among different cases or ob-jects in the face of (striking) dissimilarities’.67As the following chapters demonstrate, international actors reason with analogies in three differ-ent ways. They use analogies to interpret a given rule (rule A was in-terpreted in a particular way, and given the logic applied, rule B should be interpreted that way as well). They draw similarities between one class of action and another to claim that the former is, or is not, rule-governed (case C was rule-rule-governed, and given its similarities with case D, case D should be rule-governed as well). And they invoke analogies to establish the status of one rule with reference to other rules (rule E has customary status, and since the same levels of assent and dissent are evident in the case of rule F, rule F should be accorded that status as well).
The structure of obligation
The final distinctive feature of the modern international legal order is its structure of obligation.68Rationalists argue that states are obliged to obey international law because they have consented. In Louis Henkin’s
66 Kratochwil, Rules, Norms, and Decisions, p. 42.
67 Kratochwil, Rules, Norms, and Decisions, p. 223.
68 The argument advanced in this section is elaborated in Reus-Smit, ‘Politics and Inter-national Legal Obligation’.