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Explaining power and authority in international courts
Published online by Cambridge University Press: 04 June 2021
Abstract
It has recently been suggested that the study of international legal life should take an ‘empirical turn’: a turn which has often focused on how patterns of authority emerge and operate in relation to international courts. In what follows it is argued that this empiricism fails to distinguish (for the purposes of sociological inquiry) authority from various other concepts such as power or consensus in the study of international law and courts. This is because this method focuses only on overt signs, such as observable action or statements of intention, and at the level of the sign these concepts are not obviously distinguishable. However, one solution to this problem, which is to collapse socially significant and distinct categories such as authority and consensus into a broad category of ‘power’, requires the adoption of an implausible and inconsistent view of agency in explanations of legal authority. By contrast, and in line with the long-standing interpretivist tradition in sociological and legal method, we claim that in order to interpret the observable signs of compliance to international legal rules and principles as indicative of authority, consensus, or power, it is necessary to interpolate an account of the reasons which give rise to the compliance we observe. This, in turn, explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of its addressees, such as state officials.
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- © The Author(s), 2021. Published by Cambridge University Press
Footnotes
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Thanks to Russell Buchan, Richard Collins, Andreas Føllesdal, Jacob Holtermann, Jan Komárek, Julian Rivers, and Stuart Toddington for their comments.
References
1 M. Horkheimer, Eclipse of Reason (1947), 63.
2 N. Duxbury, Patterns of American Jurisprudence (2003), Ch. 3; P. Capps, Human Dignity and the Foundations of International Law (2009), Ch. 4.
3 For a survey of the literature see M. Suchman and E. Mertz, ‘Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism’, (2010) 6 Annual Review of Law and Social Science 555–79. For a recent discussion of empirical legal studies see G. Davies, ‘The Relationship between Empirical Legal Studies and Doctrinal Legal Research’, (2020) 2 Erasmus Law Review 3–12.
4 In 2015 the Leiden Journal of International Law published two issues which focused on this ‘empirical turn’ in international law. See, particularly, G. Shaffer, ‘The New Legal Realist Approach to International Law’, (2015) 2 Leiden Journal of International Law 189–210; J. V. H. Holtermann and M. R. Madsen, ‘European New Legal Realism and International Law: How to Make International Law Intelligible’, (2015) 2 Leiden Journal of International Law 211–30; A. Huneus, ‘Human Rights between Jurisprudence and Social Science’, (2015) 2 Leiden Journal of International Law 255–66; D. Bodansky, ‘Legal Realism and its Discontents’, (2015) 2 Leiden Journal of International Law 267–81; I. Augsburg, ‘Some Realism About New Legal Realism: What’s New, What’s Legal, What’s Real?’, (2015) 3 Leiden Journal of International Law 457–67; J. Klabbers, ‘Whatever Happened to Gramsci? Some Reflections on New Legal Realism’, (2015) 3 Leiden Journal of International Law 469–78; G. Shaffer, ‘New Legal Realism’s Rejoinder’, (2015) 3 Leiden Journal of International Law 479–86; J. V. H. Holtermann and M. R. Madsen, ‘High Stakes and Persistent Challenges – A Rejoinder to Klabbers and Augsberg’, (2015) 3 Leiden Journal of International Law 487–93.
5 See Suchman and Mertz, supra note 3.
6 J. Holtermann and M. R. Madsen, ‘European New Legal Realism and International Law: How to Make International Law Intelligible’, (2015) 2 Leiden Journal of International Law 211–30, at 229. For a critique of Holtermann’s and Madsen’s empiricism, and especially their reading of Weber, see H. Olsen and S. Toddington, ‘Legal Realism: In Search of a Science of Law’, (2016) 39 Retfaerd 22–37. For a response see J. Holterman and M. Madsen, ‘What is Empirical in Empirical Studies of Law? A European New Legal Realist Conception’, (2016) 39 Retfærd 3–19.
7 See Suchman and Mertz, supra note 3, at 560.
8 Ibid., at 559. It is noteworthy how the word ‘rigorous’ is applied here as a way of distinguishing empirical approaches from other approaches, which are then implicitly branded as ‘not rigorous’.
9 Ibid., at 565.
10 For an early critique see K. Popper, The Logic of Scientific Discovery (1959, first published in 1934 as Logik der Forschung). Here Popper attacks verificationism and introduces his falsificationism.
11 A main critique is put forward by W. V. O. Quine in ‘Two Dogmas of Empiricism’, (1951) 60 The Philosophical Review 20–43. Although Quine was an empiricist himself, he abandoned logical positivism and proposed instead a naturalized epistemology. In this essay, Quine points out that no statement can be verified (or falsified) in a stand-alone manner because the meaning of every term in every such statement is contingent on a vast network of knowledge and beliefs about the world. There is in other words no objectivity to be had from empirical data.
12 See Holtermann and Madsen, supra note 3, at 1007.
13 Ibid. This is also a key point for the original American legal realists in their critique of formalism. According to this critique, doctrine is in and of itself incapable of explaining the outcome of legal decisions. Legal decisions are always part of a broader socially embedded process in which the formal law is shaped by the economic and cultural practices which the law seeks to regulate. Hence doctrine without empirical knowledge of practice is, as one proponent put it ‘transcendental nonsense’.
14 See below at note 21.
15 P. Ghosh, Max Weber and The Protestant Ethic: Twin Histories (2014), 113.
16 H. Hart, The Concept of Law (2012); P. Bourdieu, Outline of a Theory of Practice (1977); H-G. Gadamer, Truth and Method (1989).
17 G. F. Puchta, Cursus der Institutionen (1881), cited by Ghosh, supra note 15, at 114.
18 P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805–53.
19 K. J. Alter, L. R. Helfer and M. K. Madsen, ‘How Context Shapes the Authority of International Courts’, in K. J. Alter, L. R. Helfer and M. K. Madsen (eds.), International Court Authority (2018), 24, at 28.
20 Ibid., at 29. See A. Føllesdal, ‘Power or Authority; Actions or Beliefs’, in Alter, Helfer and Madsen ibid., at 413. Føllesdal points out that ‘recognition’ seems to be very close to a study of motivations (at 414), although ‘recognition’ is a possible sign of internal motivations.
21 K. J. Alter, L. R. Helfer and M. K. Madsen, ‘International Court Authority in Question Introduction to Part III’, in Alter, Helfer and Madsen ibid., 365, at 369.
22 See Holterman and Madsen, supra note 6.
23 I. Kant, Groundwork on the Metaphysics of Morals (1785), 447–8; I. Kant, Critique of Practical Reason (1788), 25; I. Kant, Perpetual Peace (1795), 251.
24 See I. Kant, ibid. (1785), at 427; I. Kant, Metaphysics of Morals (1797), 223; Kant, ibid. (1788), at 11.
25 See Kant, ibid. (1788), at 177. See also P. Capps and J. Rivers, ‘Kant’s Concept of Law’, (2018) 63 American Journal of Jurisprudence 259–94.
26 S. Lukes, Power: A Radical View (2002), 63.
27 Ibid., at 35–6.
28 R. D. Keleman, ‘The Court of Justice of the European Union in the Twenty-First Century’, (2006) 79 Law and Contemporary Problems 117. Kelemen writes: ‘The establishment of the ECJs authority is inseparable from Europe’s push for integration. The ECJ formed an integral part of the institutional architecture of the European Communities and, later, the EU. In short, the Court was part of the package of the European integration, and states and other actors that wished to reap the benefits regional integration had to accept the court and its authority as part of that overall package. They might have resisted implementing particular rulings and occasionally called for reforms to rein in the Court, but, so long as they wanted to be part of the EU, they could not unilaterally reject the court’s growing authority.’ (at 120). This has been thrown into question recently both politically (by Brexit) and legally (by the Decision of The German Constitution Court on 5 May 2020 which declared that the application of the principle of proportionality of the Court of Justice of the European Union (CJEU) was ultra vires. See Decision on the Public Sector Purchase Programme (BVerfG, Judgment of the Second Senate of 5 May 2020 - 2 BvR 859/15)).
29 See Alter, Helfer and Madsen, supra note 19, at 52.
30 Ibid.
31 See Alter, Helfer and Madsen supra note 21, at 371.
32 Holterman and Madsen, supra note 6.
33 See Bourdieu, supra note 18, at 848.
34 See Alter, Helfer and Madsen, supra note 19, where they write about how international judges can ‘… take steps – both inside and outside the courtroom – to influence the contexts in which their courts operate …’ (at 49). They assume in other words that courts can deliberate and exercise agency in relation to their audiences.
35 For example, see Alter, Helfer and Madsen, supra note 19: they rely on Bourdieu to explain their notion of extensive authority. They say: ‘… extensive authority exists when an ICs audience expands beyond its compliance partners to encompass a broader range of actors … ICs with extensive authority consistently shape law and politics for one or more legal issues within their jurisdiction. This level of authority is largely analogous to Pierre Bourdieu’s notion of a “field” – the space where diverse actors accept the force of law but may contest the meaning, legitimacy and importance of different legal interpretations. Applied to our object of inquiry, extensive IC authority is recognized in the practices of this wider audience’.
36 Holterman and Madsen, supra note 4.
37 See L. Fuller, ‘Forms and Limits of Adjudication’, (1978) 92 Harvard Law Review 353–98.
38 See L. Benton, A Search for Sovereignty (2010), 11.
39 G. Postema, ‘Law’s Autonomy and Public Practical Reason’, in R. George (ed.), The Autonomy of Law: Essays on Legal Positivism (1996); R. Dworkin, Law’s Empire (2004); N. Simmonds, ‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308–29.
40 See, for example, P. Capps, ‘International Legal Positivism and Modern Natural Law’, in J. d’Aspremont and J. Kammerhofer (eds.), International Legal Positivism in a Post-Modern World (2014) Ch. 8.
41 R. Dworkin, ‘A New Philosophy for International Law’, (2013) 41 Philosophy and Public Affairs 2–30.
42 D. Lake, ‘Rightful Rules: Authority, Order, and the Foundations of Global Governance’, (2010) 54 International Studies Quarterly 587–613, at 596.
43 See I. Venzke, How Interpretation Makes International Law (2012).
44 See, e.g., R. Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’, (2016) 27 European Journal of International Law 9–77.
45 See, e.g., Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 25 February 2019, [2019] ICJ Reports 2019, 95. See, at the time of writing, the United Kingdom’s response to S. Allen, ‘The U.K.’s Intransigence on the Chagos Islands Dispute Is a Self-Inflicted Wound’, World Politics Review, 29 July 2020, available at www.worldpoliticsreview.com/articles/28948/the-u-k-s-refusal-to-abide-by-the-icj-chagos-verdict-is-a-self-inflicted-wound.
46 On the Ajos ruling see M. Madsen, H. Palmer Olsen and U. Sadl, ‘Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court’s Decision in the Ajos Case and the National Limits of Judicial Cooperation’, (2017) 23 European Law Journal 140–50; Decision on the Public Sector Purchase Programme (BVerfG, Judgment of the Second Senate of 05 May 2020 - 2 BvR 859/15).
47 T. Risse, ‘Global Governance and Communicative Action’, (2004) 39 Government and Opposition 125–391. Also see T. Risse, ‘International Norms and Domestic Change: Arguing and Communicative Behavior in the Human Rights Area’, (1999) 27 Politics and Society 529–59.