Authority in International Affairs: Expertise and Chained Legitimacy Communities as Source of State Commitments to Law

Transcription

1 Authority in International Affairs: Expertise and Chained Legitimacy Communities as Source of State Commitments to Law Joseph Conti University of Wisconsin-Madison Prepared for Workshop on Sociological Inquiries into International Law London School of Economics May 16-17, 2014 Abstract: This paper examines the role of professional expertise, and concomitant allegiances of professionals to particular diagnostic accounts of reality as significant for the normative orientation of states and their use of legal mechanisms in international affairs. Claims to expertise by specific actors inhabiting state institutions frames how states see law in international affairs. I illustrate this through a stylized example of how trade law practitioners translate the validity of WTO decisions to broader legitimacy communities, including state policy makers, a process that often culminates in the bolstering the legal authority of the WTO. The juridification of international affairs and proliferation of international courts has been described as breathtaking (Romano 2011: 275). In the post-cold war era, why should legal procedures be a preferred and putatively legitimate mode of international social ordering and problem solving? One answer can be derived from the state socialization thesis in which, through a process of internalization, states accept the validity of international law and increasingly view law-bound behavior as consistent not only with their interests, but as constitutive of their identities both at home and on the 1

2 world stage. By the same process, international law and courts acquire prestige and authority, incentivizing states to create additional legal mechanisms. This, however, raises the question of how to understand the state, as well as the mechanisms and agents of socialization. In this paper I develop an account of the internalization of legal norms by states that emphasizes the role of professional expertise. I begin by summarizing the state socialization thesis before considering how to understand the state. I argue that it is productive to view the state as a field of interaction in which shared knowledge and intersubjective norms shape the categories through which the state, as a collective, acts. But this is not a retreat into methodological individualism, rather it is taking seriously connection between the shared construction of reality and the creation of institutions, such as the state, through intellectual and symbolic processes, or what Douglas calls, a cognitive device (1986: 55). Institutions, built on diagnostic claims, recursively pattern cognitions of individuals inhabiting in on-gong cycles of cognition, diagnosis, and institution building. By extension, the normative orientation of the state as whole is shaped by diagnostic struggles over the definition of problems, which are waged in part through expertise and claims to legitimate power by social groups within and around the state. Who has the knowledge to make valid diagnoses of the problems faced by the state, or indeed, what the state should be? The final sections of the paper consider how the intersection of the legal profession with the state shapes how states see law as a solution to problems of international affairs. I briefly describe research on lawyers and state, identifying both supply and demand pressures related to the creation of 2

3 international legal institutions. Building on this I offer a stylized depiction of a mechanism, chained legitimacy communities, through which legal practitioners play a central role in legitimating the decisions of the Appellate Body of the World Trade Organization (WTO) and translating them into state policy, thus serving to socialize the state and bolster the legal authority of the WTO. 1. State Socialization Debate over states and international law is often organized around a disagreement between rationalist and idealist theoretical accounts. Rationalist approaches tend to emphasize how states construct international legal institutions for overcoming collective action failures by characterizing states as unified, possessing fundamentally stable identities and preferences. In contrast, theories of obligatory action argue that the creation of legal institutions and practices, including compliance, stems from a compulsion to adhere to norms. In this view, state policy reflects institutional logics but also internalized values and beliefs, habitualized dispositions or taken for granted scripts, which all contribute to the social construction of interests and instrumental action (Friedland and Alford 1991; March and Olsen 1989; Bourdieu et al. 1994). Norms and beliefs are elements of the symbolic organization of state power. States tend to act in ways that perpetuate legitimate narratives about what the state and nation are, including their moral and normative commitments, even if that conflicts at times with their narrow self-interests, or the interests of pressure groups (Meyer 2000; Meyer et al. 1997). A key notion of sociological conceptions of socialization is a correspondence, 3

4 derived through interaction, between the self and the other. 1 This interactive core of socialization is also central to state socialization. Koh (1996; 1987) argues that states obey international law, in part, due to repeated interaction with each other and with international organizations, which generates norms of expected behavior internalized by states in the form of domestic legal and cultural processes. Repeated interactions also are the basis of reputation and identity, which in turn shapes the capabilities of states to interact with other states. Goodman and Jinks (2004) conceptualization of acculturation entails identification with an external reference group that in turn creates pressure towards conformity. The idea of acculturation is drawn, in part, from world polity researchers, in which state actors, due to their identification with other states, adopt policies consistent with global scripts, enabling them to appear as legitimate state actors. Rules serve as a medium of interaction between an actor and other that fosters correspondence central to socialization. They are never merely a passive conduit of information but are also constitutive and regulative, actively shaping both the environment and the actor (Onuf 1989: 116). Laws construct categories of actors and obligations, and associate each with certain statuses and expectations. International law serves to constitute state identities and reputations by providing standards of behavior and criteria for reputation, which in turn shape how states pursue their interests and their capabilities for doing so. 2. Disaggregated states Posner (2004) argues that state compliance with international law can be theorized with a unitary model of the state and that disaggregating the state creates 1 For instance, Cooley s notion of the looking glass self and Mead s concept of taking the role of the other each entail a process of identity formation that results from learning how the other sees the self and results in the internalization of social norms as authentic markers of who the individual self. 4

5 unnecessary complexity. For him, in the disaggregated model, the agents of socialization, such as courts, government officials, NGO s or citizens, have either weak or inconsistent interest in state compliance with international law, rendering it impossible to predict state compliance. Insistence on the consistency of agents of socialization, however, would not be employed in accounting for the socialization of an individual and it isn t clear why it should be applied to states. That agents of socialization across the life course of an individual should have the same interests or assert consistent pressure towards socialization of individuals into social roles has been rightly rejected as an oversocialized conception of human actors (Wrong 1961). While agents of state socialization may have inconsistent interests in international law this also reveals little about the state itself or how bureaucratic structures may institutionalize deference to international legal norms. Sometimes actors win political victories that shape state behavior over the longer term because they are able to embed their goals and interests in laws or bureaucracies. A disaggregated view of the state entails conceptualizing it as a stage or as a field cross cut by competing, conflicting actors and groups and intersecting with other types of fields. While there has been significant attention to the notion of fields as an analytic construct, my use here is quite basic, which is to point to how capable personnel are prerequisites for the capabilities of states, that state employment can be the basis of lucrative and prestigious careers, and so the subject of competition, and thus that the specific personnel obtaining positions of influence in the state matters for states normative commitments. This suggests the centrality of identity formation of state personnel, the state as an agent of socialization of its personnel, as well as the rewards associated with investments in particular skills or knowledge, and with the policy choices 5

6 of states, that accrue to state personnel. This approach to the state and its relation to international law is evident in the work of Dezalay and Garth (2008; 2010) and Madsen (2006), each of which emphasize the legal profession working through positions in states as a central dynamic in the growth of international law. Similarly, Halliday and Carruthers (2009) theorize loops of global norm making between states and international organizations, which fuels the convergence of global and national norms. Cycles of normative reform recursively shift between formal law and law in action, between national institutions and international organizations, most importantly in this context, between institutions inside the state, and between actors in various positions inside and outside the state. What these each share is the treatment of the state, not as a unified rational actor, but as a site of contestation and struggle between different groups in which law serves as a resource for different kinds of actors with implications for the normative orientation of state practices. It matters who inhabits the state, how they got there, what they think, the values that motivate them, and what they get out of state service to understand how the state formulates its interests and actions. This shapes how the state relates to international law and courts, and the processes through which official state policy and practice may come to adopt particular normative orientations. 3. Expertise as diagnosis Professional allegiances and specific forms of expertise wielded by state personnel can shape the normative orientation and goals of a state, including how states think about international law and why they may obey it. The underlying premise is that advanced education and training are intensives sites of socialization through which graduates acquire knowledge and forge identities. These become the basis of claims to 6

7 expertise and credentials relevant to careers, as well as constitutive of what I refer to as diagnosis, or specific ways of classifying, analyzing, and acting on problems. Diagnostic claims about reality are institutionalized in professions and occupations through professional training and the acquisition of expert knowledge, be it in law, economics, political science, or another field. Making a diagnosis, which is always implied in the assertion of a norm, involves a claim about the character of reality that identifies or implies a problem possessing particular characteristics. This idea of diagnosis can be found in Therborn s conception of ideological interpellation, where the first mode of ideology concerns what exists, and its corollary, what does not exist (Therborn 1980: 18). Similarly, in cognitive versions of institutionalism, schemata operate as representations of knowledge held in the mind that frame reality, operate as heuristics, and as constituitve elements of identities, collective memories, and institutional logics (Dimaggio 1997; Alford and Friedland 1985). A similar idea of diagnosis can also be found in Bourdieu s description of symbolic power as world making (Bourdieu 1989: 23); as the power to organize the perception of the social and impose legitimate divisions within it (22). The ability to make a credible diagnosis is thus a form of power that establishes a logical sequence of potential responses. Expertise is a tool for asserting the validity of a diagnostic claim. It is a claim to holding superior understanding of the situation, for blocking competing claims, and qualifies the expert to define the appropriate course of action. This is salient in the adoption of legal norms, which occurs only when some state of affairs is credibly defined as a legal problem. 7

8 Dezalay and Garth (2008) put legal expertise and the state as a stage for careers and the accumulation of status and wealth at the center of their account of a transformation of US foreign policy away towards greater emphasis on legal norms, cooperation, and rule-oriented behavior. Following World War II, the old foreign policy establishment occupied by social elites with legal training, who operated as legal generalists and lawyer-statesmen but did not rely on technical mastery of law for their careers faced a set of challenges that lead to their demise. The cumulative result of these challenges was a technocratic turn in the lawyers working in foreign policy, which became more reliant on law and legal procedure as the basis of career advancement. The transformation of the actors who occupied the positions inside the American foreign policy establishment socialized the state: international law and institutions became viewed as a solution to problems occurring in international diplomacy, thus directly contributing to the juridification of international affairs more generally, such as through the judicialization of trade in the WTO. Where the rise of technically oriented lawyers to elite positions inside a geopolitically dominant American state might be considered a supply-side provision of international law, there is now demand-side pressure for greater investments in legal expertise, as evident in the case of the WTO. The complexity of WTO rules, as well as growing sophistication of decisions generated by the dispute settlement system creates significant demand for deep investments in legal capacity by other WTO members (Conti 2011; Shaffer et al. 2008). Effective use of the WTO system requires institution building within states to foster legal capacity, which includes cultivation of lawyers and administrators with relevant expertise. This in turn enhances the status of lawyers from 8

9 trade ministries in state policymaking and contributes to a greater acceptance of legal norms for facilitating liberalized trade. The demand is evident in terms of the diffusion of trade relief laws and related judicial mechanisms, increased legal work for patent filings, as well as legal work outside of the state consulting for private businesses on trade matters. These trends deepen commitments to legal norms and liberalized trade, empower trade ministries, enhance the status of trade lawyers inside the state, and bolster the authority of WTO judicial decision-making. Each of these trends is productive of and responsive to expertise. The formation of a legal complex (Halliday, Karpik, and Feeley (2007), within and around the state, reconstitute not only the state s commitments to law, but the state itself. 4. Chained Legitimacy Communities The same process by which states are socialized through particular modes of legal expertise deployed by state personnel results in the valorization of international law and increased acceptance of its authority over states. Law, including international law, entails certain claims to legitimacy. The acceptance of legitimacy claims results in a perception of authority. Suchman, drawing on Weber, characterizes legitimacy as generalized perception or assumption about what is desirable, proper or appropriate within some socially constructed system of norms, values, beliefs and definitions (1995: 574). The centrality of belief for legitimacy indicates how authoritative ordering of society, such as through law, is rooted in the internalization of meaning classifications and knowledge, including expertise. The role of socialization is clear in the correspondence required between the possessor of power and those that believe that authority legitimate. Legitimacy reflects a congruence between the behaviors of the legitimated entity and the 9

10 shared (or assumedly shared) beliefs of some social group (Suchman 1995: 574), or legitimacy communities (Black 2008). A chained legitimacy community refers to institutionalized links between different kinds of legitimacy communities. A legitimacy community may be nested within a broader one but they may differ in terms of the character of the claim each community asserts about its own legitimacy, or the subjective criteria for accepting legitimacy claims of others. In such chained communities, specific actors engage in translating legitimacy claims into the vernacular of the other community. In terms of state socialization this translation is structured by the competencies associated with professional expertise, the bureaucratic structure of states which offices and personnel are charged with specific analyses and recommendations as well as the politics of policy making. Where Dezalay and Garth emphasize the occupation by technically trained lawyers in the commanding heights of foreign policy making, lawyers are often situated in more subordinate positions, with portfolios of work invoking their particular expertise and which culminate in recommendations to more senior decisionmakers. Applied to state relations in international legal institutions such as the WTO, the concept of chained legitimacy communities describes how the personnel to doing the legal work in international legal institutions translate the appropriateness of their actions to political decision-makers, framing the authority of international law as well as the relationship between it and states. As an example, observers of the Appellate Body of the WTO have noted the formalist style of its rulings. Picciotto (2005) argues that this style is a response by adjudicators to the fact that the very countries upon which they place judgment hold them 10

11 accountable. The formalist style, argues Picciotto, confronts that dilemma by obscuring the value judgments embedded in their decisions, which if exposed would open the legal process to a much broader and more political constituency. The formalist style narrows the audience capable of assessing WTO decisions largely to practitioners who have acquired the relevant expertise through education and direct experience (Conti 2011). The formalist style appeals to practitioners in part because it reinforces their own claims to professional legitimacy. The legitimacy of legal actors, including panelists, Appellate Body members, but also the lawyers representing member states, is premised on a distinction between law and politics. This is a distinction that is often blurred in practice in the WTO system, but it remains central to its public claims to legitimacy. That distinction, in turn, relies on another between application of the law and its interpretation. This double distinction of law/politics, application/interpretation entails a claim to professional legitimacy that hides judges meaning construction, a mystification that Picciotto argues is accomplished in part through the Appellate Body s formalist style. This noble lie wraps the practical and constitutive process of creating a representation of the law in the image of mechanical application. Valorization of the law, lawyers, and judges the making of their claim to valid authority over the sophisticated body of legal knowledge operates through the presentation of interpretation, at least for key legitimacy communities, as merely clarification. The formalist style of the Appellate Body can thus be understood as engendering a legitimacy claim aimed at a rather narrow community of trade practitioners. The most proximate legitimacy community is the direct participants in the legal proceedings, the practitioners doing the legal work in a dispute. A second and interrelated legitimacy 11

12 community is the observers of the court proceedings: the lawyers, administrators and academics that may be past or future participants in a dispute, either representing one of the parties or as a panelist, and otherwise constitute the epistemic community surrounding the WTO dispute settlement system. These two inter-linked legitimacy communities demand the formalist strategies of the Appellate Body, in part because it preserves their own credibility and also because it reinforces the professional monopoly over legal labor. They in turn must translate the ruling and its implications to politicians and vested constituencies, two further linked legitimacy communities. This translation may or may not invoke legal norms, such as assessments of standards of review or legal method, but may instead or additionally invoke economic or political implications. 2 Practitioners become enrolled as the agents of the court in evaluating and translating the appropriateness and implications of the court s action to political masters for whom the formalist style has little salience. In turn, those political masters rely on the vouching of the trade practitioners in framing state responses to the court to other parts of the state and before domestic constituencies. The translation work of the lawyers engaged in WTO disputing is at the source of the formation of asymmetric domestic political coalitions favoring exporting industries, which others have theorized as the basis of the selfreinforcing character of WTO decisions, as they undermine domestic protectionist coalitions and empower coalitions of export-oriented industries (Goldstein and Steinberg 2008). 2 For instance, in promoting the benefits to the US of the WTO dispute system before the Senate Finance committee (March 9, 2004), former USTR Zoelick argued that to preserve those benefits required compliance with unfavorable decision, stating: America should not be a scofflaw of international trade rules. 12

13 It is in this role, as translators of legitimacy to other, more politically potent legitimacy communities that lawyers play a vital role in internalizing specific legal norms into the state. The ability of those lawyers to translate the credibility of the court s actions to politicians and to vested constituencies shapes the likelihood of compliance and the legitimacy of the legal authority of the court for broader legitimacy communities. How those lawyers do this translation work likely depends on the court and on the issue, as the vested constituencies and their relation to the state shift from issue to issue. This translation work likely varies from state to state, given different institutional structures, career trajectories through the state, and legal training. This nonetheless outlines a basic framework for state support of international courts, in which lawyers play a central role in assessing the validity of law and brokering its acceptance by other actors inside and outside the state. 5. Conclusion: Expertise and State Socialization This approach to state socialization helps explain the juridification of international affairs and the legitimacy and authority of international legal institutions such as the WTO. As technically oriented legal professionals have occupied privileged positions within powerful states and translated legal norms through chained legitimacy communities, they have served as an influential source of ideas about how international politics should be conducted. Their success in using powerful states to create and use international legal institutions has generated broad demand for deeper investments in legal expertise. In this way, the juridification of international affairs hails state personnel with certain traits and normative commitments, providing career paths towards powerful positions at the intersection of governments, law firms, transnational corporations, as well as international organizations. These insights are unlikely to culminate in a predictive 13

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