Saturday, May 26, 2007

The coming rise of social theory in international law scholarship (post 4 of 4)

The rise of social theory. So the way in which we do academic international law would benefit from clearly separating out the matters at issue; a graphical representation might help with mapping out the distinct concepts. And with mapping out the claims of dependence and independence made with respect to the concepts. Maybe the graphical representations just confuse matters, though.

That said, much of the most exciting work to be done in academic international law is not precisely prescriptive or descriptive in the sense those terms are used above. Instead, much of the most exciting – and controversial and provocative – work in international law theory, at least, will come in the suggested as an alternative Z axis, above – in the form of social theory, on the one hand, and concrete sociology, on the other. The questions at issue here will be things like the social development of international elites, both theoretical and empirical perspectives – in ways that are quite different from IR modeling, or game theory, or rational choice, but draw instead on quite different traditions of social theory. And questions of legitimacy, understood in genuinely sociological ways, rather than as concepts in political and legal theory alone.

Globalization, and theories of globalization, seem to me to make this conversation within the international law academy both desirable and inevitable. When Slaughter calls for the development of global judicial elites, for example, or when Ryan Goodman and Derek Jinks talk about “socializing” toward human rights compliance, or when Benedict Kingsbury talks about technocratic global networks, they are invoking not so much political theory or legal theory as much as sociology and social theory. These views embody large, sometimes implicit, claims about the nature of the international and the global – viz., that they, or significant parts, are emerging as societies, analyzable as societies as such. Normative and factual skeptics of such claims, such as myself, are no less interested in sociology and social theory concerning these matters – critics like me tend to reach, naturally, to forms of critical social theory, new class theory, elite formation theory, in order to contest the factual and normative assumptions that lie behind the “world as society” and “global bourgeoisie” movements.

This is a desirable shift given the way in which arguments over globalization and the norms of globalization are progressing – but one which is quite different from the more obvious, long overdue “invasion” of academic international law by law and economics, social science, rationalism and empiricism. Method and ideology are going to be involved in arguments in the future that are substantially different and much more complex than even the current movement to bring academic international law into the mainstream of American academic law through the application of social science techniques. And that is all to the good for how we collectively “do” international legal scholarship.

(There remains a further discussion about the role of doctrinalism in international law - the role of positive law, doctrinal analysis, the methodological commitments both implicit and explicit international law in particular. Peter Spiro at Opinio Juris, here, draws such a discussion specifically about international law scholarship into a broader discussion initiated by Einer Elhauge, guest-blogging at Volokh, here, and see responses by Larry Tribe, Jack Balkin, and Orin Kerr. But I will let that discussion rest - for the moment.)

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