Setting the theoretical context
DOI link for Setting the theoretical context
Setting the theoretical context book
Considering the fundamentally interdisciplinary nature of the study of sovereignty, it is somewhat surprising that so little interdisciplinary research has actually been conducted in this field. A perusal of recent research on international institutions suggests a general academic insularity of the disciplines of International Relations (IR) and International Law (IL), which – despite working in cognate fields and sharing a number of common research interests – seem unable or unwilling to overcome the disciplinary divide. In his seminal book How Nations Behave: Law and Foreign Policy Louis Henkin referred to their dialogue as a dialogue de sourds. Noting that both disciplines “purport to be looking at the same world” he regretted “that they should not, at the least, hear each other” (Henkin 1979: 4). Disciplinary vanity, the lack of a common vocabulary, and the unwillingness of each side to immerse itself in the academic culture of the other (due, among others, to the decade-long dominance of the realist paradigm in IR) have hindered intellectual rapprochement of IR and IL. At first glance, this negative finding seems at odds with the tone of (cautious) optimism voiced in a number of articles published on the subject of interdisciplinary collaboration in the past decade or so, in which academics from both camps have highlighted the possibility of cross-fertilization processes between IR and IL. Both Robert Keohane and Chandra Lekha Sriram, for instance, observe an increasing convergence of research agendas (Keohane 1997: 488; Sriram 2006: 467). Echoing this view, Veronica Raffo et al. state that the fields of IR and IL have become increasingly intertwined, thus ending a long tradition of viewing them as two separate fields of inquiry (2007: 3). Clarence Dias also maintains that the divide between the two disciplines is closing, while Anne-Marie Slaughter et al. point out that the “l word” is no longer taboo for IR scholars
(Dias 2007: 281; Slaughter et al. 1998: 367). The concept of legalization, for instance, which acknowledges that law and politics are intimately connected, has created common ground for scholars from both disciplines (Abbott et al. 2000: 402). It seems, however, that “there has been more smoke than fire – and more calls for research than actual research that responds to such pleas, even when promising lines of inquiry are identified” (Ku et al. 2001: 5). Overall then, despite the acknowledgment that interdisciplinary cooperation could yield important insights, both disciplines have been slow in following through with their proposals. Scholars of IR and IL continue to publish in different journals, attend different conferences, and work on separate research projects. It may well be the case, as Martha Finnemore stresses, that opportunities for interdisciplinary collaboration “have never been more prominent” (2007: 275); however, both IR and IL need to seize upon these opportunities, otherwise interdisciplinarity will remain a mere potentiality. What accounts for the disciplinary divide? One reason for the schism between the disciplines is the long-standing theoretical primacy of the realist paradigm in the discipline of IR. Realism in fact did rather a good job of explaining the superpower reality of the Cold War period, but is proving increasingly inadequate in explaining international outcomes in the post-Cold War world. Neorealists dichotomize international norms and state power and relegate the former to the realm of utopia – hence IL scholars have seen little point in engaging in dialogue with proponents of this strand of IR-theory. In a nutshell, realism is about states, their interests, and their power (Mearsheimer 1994/1995: 9-14). Realists assume that the unregulated anarchy of international relations dictates a self-help system in which states pursue their national interest defined as power because they fear for survival (Waltz 1979: 91). In such a setting, compliance with international norms is not only unlikely but, even worse, highly imprudent and potentially self-defeating. A state fearing for relative gains risks being a sucker if it abides by international law while other states defect. According to the realist view, states cooperate and comply with international rules only if it suits their needs; when inconvenient, they will break the rules (Mearsheimer 1994/1995: 12ff.). Neorealism’s defense of a crude dichotomy between norms and power has prevented scholars from developing a more nuanced account of the relationship between international law and international politics.1 Neorealists fail to acknowledge that power may reside in something other than a state’s economic and military resources, and that actors other than states may be consequential in world politics. Realism’s pessimism regarding the influence of international law on state behavior is mirrored by a school of jurisprudential thought whose representatives, in an Austinian vein, maintain that international law is not law at all because laws by definition are commands of a sovereign. In international relations, however, there is no such sovereign able to enforce rules – international law is therefore not law properly so called.2 The disciplinary divide has been deepened by a tendency of both disciplines to ask different questions and make different arguments. Political science seeks to explain, and to prescribe what ought to be, whereas legal positivists aim at
describing what is. This leads to mutual frustration: students of IR may find legal positivists’ obsession with accurately describing the substance of the law as it stands rather narrow-minded, while international lawyers are annoyed by the lack of rigorousness that often characterizes arguments made by political scientists who mingle moral, political, and legal aspects. Subjects that are of relevance to both disciplines can be approached from a number of different perspectives, and the task of political scientists who seek interdisciplinary rapprochement with legal scholars is to make clear which perspective they are adopting; that is, whether they are discussing the law as it stands (lex lata) or whether they are arguing what the law ought to be in their view (de lege ferenda). Differences in disciplinary culture also regard methodology: political scientists’ concern with independent, dependent, and intervening variables, with selection bias, research design, etc. may seem arcane to international lawyers, whose affection for case law in turn may seem exclusionary to students of IR. Disciplinary jargon is another problem:
[M]embers of the two cultures thoroughly ensconce themselves in ‘different language communities’ . . . essential concepts like opinio juris, epistemic community, jus cogens, soft law, rebus sic stantibus, and hegemonic stability are generally meaningful for scholars only of one discipline or the other.