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“Constructivism” as a Method in International Law

Published online by Cambridge University Press:  28 February 2017

Phillip A. Karber
Phillip A. Karber*
Affiliation:
The Potomac Foundation
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Abstract

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Type
Explaining the Sources and Methods of International Law
Information
Proceedings of the ASIL Annual Meeting , Volume 94 , 2000 , pp. 189 - 192
Copyright
Copyright © American Society of International Law 2000

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References

1 For a term that is currently used by so many, with a conceptual pedigree that can be traced back several centuries, the word “construct” with an “ism” applied to social theory is a relatively recent phenomena. A trail of multi-disciplinary usage can be tracked over the last fifty years—with the term “Constructivism” coming from mathematics and entering philosophy in the late 1940s; developmental psychology in the 1950s; philosophy of science in the 1460s; sociology, semiotics and learning theory in the 1970s; post-modern philosophy, anthropology, ethno-methodology and legal studies in the 1980s; cognitive psychology, neurophysiology, and IR in the 1990s. The earliest attempt to look at the implications of applying a method of “incomplete constructed symbols” to International Law was by F. S. C Northrop of Yale Law School in his studies of the “The Complexity of Legal and Ethical Experience” in 1959 and “Philosophical Anthropology and Practical Politics” in 1960. After three decades of disuse, the term was reintroduced into International Relations by Nicolas Onuf in his 1989 work “Worlds of our Making.”

2 For example, a generally positive discussion of Constructivism dominated both the participant and audience comments on the Panel: “Legal Theory in Ferment: What International Legal Theory Can Learn from International Relations Theory,” Chaired by Martha Finnemore with panelists: Robert J. Beck, Christopher Joyner, and Robert D. Vander Lugt, at the ASIL 94 Annual Meeting.

3 Five well published IR scholars have led the theoretical pursuit of Constructivism in major works—in alphabetical order: Anthony Arend, Friedrich Kratochwil, Nicholas Onuf, John Ruggie, and Alexander Wendt—four of which (all but the later) are equally known for their contributions in International Law. Each has had a major role to play. To Onuf goes the credit of breaking barriers through pioneering effort and creatively combining post-modern philosophy, social criticism and international norms into a provocative call to think differently about IR theory. Kratochwil, re-linked Constructivism to the heritage of traditional political philosophy and pointed out that as an IR theory it explained the dramatic changes in the international system following the cold war better than traditional realism. Wendt argued that the international system should be viewed as a form of society, however primitive, and thus made the case and showed the way for introducing the multidisciplinary insights of sociology. Ruggie linked Constructivism with international institutional development over time. Arend was the first to apply a Constructivist approach directly and exclusively to International Law.

4 Kant’s Constructivist “architectonic” involves three layers of philosophical critique and reconstruction: 1). “Scientific Inquiry” and the Construction of knowledge; 2). “Norm-related action” (symbolically Constructed social rales); and 3). “End-related configurations” (Constructivist teleology). For Kant these layers form a vertical “edifice complex” with knowledge as the foundation, upon which normative action builds a superstructure, capped by a teleologica! roof of end-related goals. Onora O’Neill provides a helpful insight into these three types of Kantian Constructivism in her “Constructions of Reason: Explorations of Kant’s Practical Philososphy.”

5 American Pragmatism (C. S. Peirce, William James, John Dewey, George Herbert Mead, Nelson Goodman, W. V. Quine, Donald Davidson, Hillary Putnam and the neo-Pragmatists Richard Berstein and Richard Rorty); neo-Kantian philosophy; Erkenntnistheorie (including both the Erlangen and Edinburgh schools; a wide range of commentators from Ludwig Wittgenstein to Thomas Kuhn); and from the Radikale Konstruktivismus into “postmodern” literature.

6 This has undoubtedly been the most controversial element of Constructivism in IR—because at first glance it seems to fly in the face of not only common sense realism and the tenets of modern science, but also the scholar” s mission. On the other hand, it is the emphasis on constructed “worlds of our own” that has given the movement its post-modern cache. For many Constructivists, the position that truth is “relative” and therefore cannot be proven is not inconsistent with a scientific effort to remove as much ignorance as possible while clarifying and expanding the vast inter-subjective area where reasonable men can reasonably agree on those assumptions necessary to act in the world while not abandoning a certain humility with regard to what is to be viewed an immutable “fact.” The cross over between epistemological debate in the philosophy of science and social science was originally addressed by Steve Woolgar and Dorothy Pawluch in their 1985 journal article on “How Shall we Move Beyond Constructivism?”

7 Ontology—the branch of metaphysics traditionally dealing with the philosophical theory of what exits—has become a key word of Constructivism by building on the process definition that what can be known must be interacted with. While a long standing debate has broiled over whether action is caused by the movements of agents or the long term effects of deep structures patterning human behavior—the Constructivist philosophical and social science position has tended to focus mid-way on the co-constitution and interaction of both agency and structure where action is reinforced through pragmatic or functional outcomes that become ingrained. Some IR Constructivists have tried to by-pass the controversy of epistemological relativity by claiming it as an ontologocial issue, but this has generally been more confusing than enlightening.

8 Part of this Teleological orientation comes from the “process/inter-actionist” ontology, where action implies “a future state of affairs toward which the process of action is oriented” and therefore “the schema of action is inherently teleological.” In contrast to traditional Behaviorism, which tends to view action as “pushed” by antecedent stimuli, Constructivism as a social learning theory has given much more weight to the “pull” effect on motivation of anticipated prospects (both hope of gain and fear of pain). On the telic aspects of Constructivist learning theory, see the works of Joseph Rychlak. Nevertheless, there is a very real part of Constructivist philosophy which is a value commitment emphasizing the application of human effort for progressive social development. This is most explicit in the American Pragmatist tradition of Dewey; but is also endemic to the teleology of Kant and readily apparent in the progressive tradition of Symbolic-Interactionist sociology.

9 While the “levels” reflect a hierarchy of social complexity the “units” represent a continuum of behavior from the inception of thought through extended and self-reinforcing patterns of interaction. Each “unit” is Constructed by the successive growth of activity space in an expanded environment. Thus, in terms of “identity” it is sufficient to differentiate the “self from “others” in terms of passive perception; but when the “others” act in ways that impact on the “self this creates “expectations” or anticipations about future acts. At an increased level of intensity, these anticipations begin symbolically arousing the recipient to reaction. To the extent that they “demand” a response—a form of communication called “speech acts”—these symbolic exchanges, or interactive events, cover the spectrum of human activity—from shared identity (Cultural commitment), to shared benefits (utilitarian or Economic cooperation), to unshared costs (Political coercion). Each type of influence produces a different type of normative subscription, or “Ruling Channel,” unique in their constitutive nature and controlling effect. “Institutionalization” occurs when one “ruling channel” is coupled with another in the creation, interpretation, or execution of rules, which enable and control the “flow” of channeled activity. Institutional dominance over the interactive “demand” process increases in proportion to the combination that all three forms of “influence”—authority recognition, exchange efficiency and coercive power—are available in an organization. The greater the number of channels, the more complex the organization. The more that different channels are mutually supportive, the deeper the pattern of interaction—a process called “structuration” when extended over time with self-reinforcing functionality. The concept of “channeling” has been applied recently by Harold Koh; Constructed “Institutionalization” is further developed in the latest works of Walter Powell and Ronald Jepperson, and a classic is Mary Douglas’ 1986 piece on “How Institutions Think.” Sociological structural functionalism built on the self-reinforcing patterns of “action” theory was long associated with Talcott Parsons and more recently “structuration” has been rehabilitated by Anthony Giddens.

10 Of the various leading IR Constructivists, the one who has been most responsible for introducing cross-disciplinary fertilization (in this case, particularly the concept of “identity” from the field of social-psychology) has been Wendt.

11 Within the illustrated framework of only five “levels” and five “units” are at least a dozen socially related human sciences with significant Constructivist components—including: biology, psychology, social-psychology, sociology, anthropology, economics, political science, decision theory, communications, law, education, and history—before getting to international relations, each of which have significant conceptual and lexical difficulties communicating with one let alone all of the other disciplines.

12 The argument here does not dispute the value of explanatory “parsimony” in a developed discipline; rather, Constructivists claim that there is a preliminary function of theory—the need to inter-relate and integrate complex phenomena from diverse disciplines—that is required for the current “pre-theoretical” state of IL. If one is going to view international legal life narrowly, addressing only the formal and explicit agreements between states, then “simplistic” theory may be what is needed. However, “complex” theory is needed if one is going to apply the discipline of IL to the rules and regulation of a global society, with the need for international law to relate to comparative law, to a multitude of differing legal cultures, to a host of embryonic and adolescent institutions, a wide spectrum in the degree of normative ascription and observance, and the developmental mandate to replace dependence on unilateral “self-help” violence with community based conflict resolution.

13 Krasner calls the presence of long-standing norms that are frequently violated “organized hypocrisy.”

14 It is the commonality of this continuum, and the ability it offers to generalize about normative influence that has been the major interest of most IR Constructivists, who in tern have focused on the “norm” side rather than the “law” side. For example, see the work of: Martha Finnemore, Audie Klotz and Nina Tannenwald.

15 This point is clearly made in Anthony Arena’s recent Constructivist work where he provides an innovative evaluative framework by which to differentiate levels of normative ascription through the correlation of legitimized “authority” and organized “control” in the legal process.

16 A search of the last fifteen years of American law journals shows an exponential increase in the citation of Constructivist research, most of it borrowed from the social sciences rather than IR. Likewise, reference to philosophical argument tended to lean more to issues of epistemology and ontology rather than political theory. An early sociological application to law was the 1975 groundbreaking journal article by John Hagan on the “The Social and Legal Construction of Criminal Justice.”

17 Not the least of which is John Rawls’s 1980s work on “Kantian Constructivism in Moral Theory.”

18 However, neither the inheritors of the Yale tradition nor the more politicized advocates of post-modern social criticism may be inclined to recognize a McDougal/Lasswell family resemblance to Constructivism.

19 Particularly Lasswell’s association at the University of Chicago with the Pragmatist and Progressive tradition.

20 Note the intellectual commitment to “relativist” Epistemology; “process” Ontology; and “developmental” Teleology as discussed above.

21 While Lasswell is known for his eclectic and multi-disciplinary borrowing, he himself stated that he preferred the social-psychology of “inter-actionist” George Herbert Mead (now an icon of Constructivist “symbolic-internactionism”) and in fact, Lasswell expanded Mead’s concept of “identity” (the differentiation of the self and other) into an analytical framework of “process” that included “expectations,” “demands,” and “institutions” consistent with the framework illustrated above.

22 Like Constructivist Arend, McDougal/Lasswell stressed the defining characteristic of the legal process in the confluence of “authority” and “control.”

23 As shown by Fernando Teson in his A Philosophy of International Law, this is a clear manifestation of Kantian transcendental Constructivism.

24 In terms of an IL Constructivist methodology, a high payoff would seem to come from “re-constructing” McDougal/Lasswell by:

  1. (1)

    (1) Updating their social science terminology and concepts (no small amount of Lasswell’s 1930s Freudian baggage could be jettisoned without ill effect) with a more recent Constructivist social science lexicon;

  2. (2)

    (2) Converting their megalithic “fill-in-the-box” taxonomy into a streamlined symbolic-interactionist “frame” approach;

  3. (3)

    (3) Revise the “value” and “decisional” components with findings from recent empirical research in game, economic and utility theory;

  4. (4)

    (4) Combine all of these with a more developed variant of the McDougal/Lasswell “authority-control” paradigm based on the concepts of “channeling” and institutionalized “pattern variables;” and

  5. (5)

    (5) Modernize their multi-volume classic compilations of substantive International Law with thirty years of new cases but also a commentary that is more dialectical (reflecting the dynamic and conflictive process they espoused) rather than attempting to be judgmentally definitive.