The Discursive Construction of Legal Norms and Institutions: Law and Politics in Negotiations on the International Criminal Court
48 Pages Posted: 17 Nov 2007
Date Written: November 15, 2007
Research on legal norms and institutions has flourished within IR in the last years. However, the concept of law within (mainstream) IR remains truncated. In the fairly dominant neoliberal approach to legalization the construction of legal norms are the result of a strategic choice related to the costs and benefits associated with those norms for states. Law is merely a function of politics. With this narrow understanding of law, however, neoliberals miss important parts of developments in international law. They can neither explain the emergence of legal norms and institutions despite the opposition of major states nor can they grasp the formative effects of legal discourses on political action. Law is not simply a functional device to further the strategic interests of state actors but equally reflects a framework of legitimacy which actors cannot escape once they are engaged in law-making. At least in its ideal form, law precludes bargaining and narrow interest politics and instead points to a normative reasoning process grounded in legal and moral argument aimed at promoting the public interest. This process is best captured within a constructivist framework pointing to persuasion and discourse. Persuasion and discourse reflect interactions in which actors may change their views in response to superior normative arguments. However, this kind of deliberative law-making as purely grounded in persuasion and discourse and insulated from (power-)politics is already an ideal type in highly institutionalized and normatively integrated national settings. It is even less plausible once applied to the international sphere which is characterized formally by anarchy, fragmentation, and power asymmetries in which a dominance of politics over law seems to be inevitable. But actors may take the initiative to strengthen the impact of law and morality over politics by forming institutional and normative conditions conducive to persuasion and discourse in legalization processes. Drawing on the development of the International Criminal Court, the article demonstrates how a transnational alliance of middle powers and NGOs coordinated their strategies and how they altered the course and outcome of negotiations by changing the argumentative structure of negotiations.
Keywords: International Criminal Court, constructivism, legal norms, neoliberalism
JEL Classification: K10, K33, K49
Suggested Citation: Suggested Citation