Transnational Law Institute Research Paper Series
TLI Think! Paper 24/2020
THE WORKINGS OF POWER IN TRANSNATIONAL LAW
Founding Editor: Peer Zumbansen, Co-Director Transnational Law Institute
Production Editor: Farnush Ghadery, Research Fellow, Transnational Law Institute
The Dickson Poon School of Law, King’s College London
W: http://www.kcl.ac.uk/law/tli E: email@example.com
This paper can be downloaded without charge at:
Studying the transnational politics of law implies a transdisciplinary research
framework. In various sub-fields of law and society studies, scholars stress the
political moment of law and legal practice by attempting to understand law-as-
something-else (e.g. law as culture, law as geographical knowledge, law as
literature, etc.). The paper argues that this points to a yet unexploited possibility:
by moving beyond an interdisciplinary understanding of the role of international
law in international politics and beyond an understanding of international law as
type of international norms to be studied in an analytical framework of IR norms
research, the idea is to study (inter- or transnational) law as politics. To achieve a
deeper understanding of the politics of law and the mechanisms of power at work
within law, it is necessary to zoom in on the sites in which law is forcefully applied.
Drawing on insights in Legal Realism and the Critical Legal Studies, I argue that to
account for law-as-politics—and that is the workings of power in law and legal
practice—it makes sense to address legal norms as critical resources of power. It is
in this sense that the paper calls for an inclusion of IR theory into the law and
society studies research program.
Keywords: Transnational law, power, norms, law-as-politics, practice, geography,
transdisciplinarity, law and society, legal realism, critical legal studies, IR theory
Acting Professor at Fulda University of Applied Sciences and Senior Research Fellow
at the Dickson Poon School of Law,
Transnational Law Institute
THE WORKINGS OF POWER IN TRANSNATIONAL LAW
The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.
(Alien Tort Statute, 28 U.S.C. § 1350)
Über euer Sch***-Mittelmeer käm’ ich, wenn ich ein Turnschuh wär’. Oder als Flachbild-
Sch*** – ich hätte wenigstens ein’ Preis. Es gäb’ für uns kein Halten mehr, wir kämen
immer nur schneller her. Ich seh’ die Waren zieh’n, ohne zu flieh’n gehen sie an Land,
gehen sie an Land, als Verheißungslieferant, Meinungspraktikant, Rückweisungsversand,
Abwicklungsgarant. Komm gib mir deine Hand, denn heute feiern wir!
(Die Goldenen Zitronen)
In a song called ‘Wenn ich ein Turnschuh wär’ (If I were a sneaker) the Hamburg
punk band Die Goldenen Zitronen posits that products such as ‘sneakers or flat-
screen sh**’ easily make it via the Mediterranean Sea while, at the same time,
refugees do not. Similar geographical limits apply to human rights claims brought
by people suffering from violations through multinational corporations. Their
struggle, usually supported and internationally canvassed by various human rights
activist networks, often turns out being a struggle à la David against Goliath. In the
context of a global capitalist order, corporations such as Nike or Shell would
* Dr. Philip Liste, Acting Professor at Fulda University of Applied Sciences and Senior Research Fellow
at Dickson Poon School of Law Transnational Law Institute. Email: firstname.lastname@example.org. This
paper is an unpublished part (synopsis) of a kumulative Habilitation at the Faculty of Business,
Economics and Social Sciences at University of Hamburg. For helpful remarks on an earlier version
of this paper, I am grateful to Friederike Kuntz, Antje Wiener, and Peer Zumbansen. I also thank Lea
Rühmann for helping me to reorganize the footnotes.
Die Goldenen Zitronen. ‘Wenn ich ein Turnschuh wär’ from the album ‘Lenin,’ Buback, 2006. The
song is from 2006. It has not lost currency. My translation: Via the f***ing Mediterranean I came if I
were a sneaker. Or, as flatscreen sh**, at least I had a price. There wouldn’t be no halt, we only
came here much quicker. I see the flow of commodity, without having to flee they go onshore, go
onshore, as provider of great promise, opinion intern, return shipping, guarantee of processing.
Come on, give me your hand because today, we celebrate.
apparently be ‘too-big-to-punish.’
Among the reasons for corporate impunity is
the international legal principle of territoriality. Corporate actors who usually
attend their business under conditions of global free trade and thus without
encountering nation-state borders as a big problem would nonetheless enjoy
territoriality as a legal opportunity to hide business interests behind these very
borders when it comes to human rights-related allegations.
One landmark case in which a multinational corporation, Shell, has been accused
of having aided and abetted in human rights violations in Nigeria (including the
extra-judicial killing of nine local activists, the so-called ‘Ogoni 9’) and has finally
gotten away with a territorial claim to jurisdiction is Kiobel v. Royal Dutch
The case belongs to a group of legal action brought in the U.S.
under the so-called Alien Tort Statute (or Alien Tort Claims Act, see above quote),
which enables plaintiffs from all over the world to bring international human rights
cases in U.S. district courts.
After Kiobel had entered the Supreme Court in 2011,
oral argument sessions addressed the questions of corporate liability under
international law and on the consequence of extraterritorial jurisdiction. During the
oral reargument session on October 1, 2012, the court raised questions as to the
connection of the alleged human rights violations in Ogoniland, Nigeria, on the one
hand, and the territory of the U.S., on the other. To be sure, none of the relevant
incidents had taken place on U.S. soil and neither the Nigerian plaintiffs nor the
respondents, an Anglo-Dutch corporation) has a strong connection to the U.S.
However, Paul L. Hoffman, acting in court on behalf of the Nigerian plaintiffs,
seemed not to be overly worried about the geography of the case.
MR. HOFFMAN: The [...] only connection between the events in Nigeria and the United
States is that the plaintiffs are now living in the United States and have asylum because of
those events, and the defendants are here. There’s no other connection between the
events that took place in [...] Nigeria and the forum. The [...] basis for suing the
defendants here was because they are here and because it was possible to get
See the campaign by the non-profit organization EarthRights International on Kiobel v. Royal Dutch
Petroleum under https://www.youtube.com/watch?v=mWGmCjNMyys (visited on February 2, 2020).
For a closer discussion of the law case, see Philip Liste, ‘Transnational Human Rights Litigation and
Territorialized Knowledge. Kiobel and the ‘Politics of Space’’ (2014) 5 Transnational Legal Theory 1;
Philip Liste, ‘Colliding geographies: space at work in global governance’ (2016b) 19 Journal of
International Relations and Development 199; Philip Liste, Völkerrecht-Sprechen. Die Konstruktion
demokratischer Völkerrechtspolitik in den USA und der Bundesrepublik Deutschland (Baden-Baden:
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). See also the overview with further
documents at https://www.oyez.org/cases/2011/10-1491 (visited, March 22, 2020).
Philip Liste (n 2); Philip Liste, ‘Geographical Knowledge at Work: Human Rights Litigation and
Transnational Territoriality’ (2016) 22 European Journal of International Relations 217; Ruti Teitel,
‘The Alien Tort and the Global Rule of Law’ (2005) 185 International Social Science Journal 551;
Ingrid B. Würth, ‘The Supreme Court and the Alien Tort Statute. Kiobel v. Royal Dutch Petroleum Co’
(2013) American Journal of International Law 103.
JUSTICE KENNEDY: And just to make it clear [...] it’s your position [...] that if a U.S.
corporation commits an international law violation in the United States, that U.S.
corporation can be sued in any court in the world? [...]
CHIEF JUSTICE ROBERTS: [...] I suppose, if you have [...] a number of plaintiffs, they can
sue in a number of different countries, right? Some will sue in the United States, others in
the United Kingdom, others in the Netherlands?
MR. HOFFMAN: Well, it [...] is possible that the plaintiffs could have sued in other places.
They sued here because this is where they live. This is their adopted homeland because
of that. The United States, under international law, clearly has jurisdiction to adjudicate
claims between parties properly before them.
By pointing to international law, Hoffman apparently holds that there are no
territorial limits to the court’s jurisdiction. In fact, he does not even deem it
necessary to scrutinize the connection between ‘Nigeria and the forum.’ The
invitations to reflect on a possible territorial dis-connection are just ignored. The
canvassed geographical knowledge does not ‘know’ any borders, let alone
territorial limits to jurisdiction. Put frankly, universal justice floats freely.
In these geographical terms, the argument brought for Shell differs remarkably.
Attorney Kathleen M. Sullivan, acting on behalf of the respondents, started her
remarks with the programmatic statement that all this had ‘nothing to do with the
Apparently, this emphasis of a non-relation builds upon a highly
territorialized geographical knowledge. As Sullivan stressed, ‘It’s Nigerian plaintiffs
suing an English and Dutch company for activity alleged to have aided and abetted
the Nigerian government for conduct taking place entirely within Nigeria.’
Jurisdiction, as it were, should not include ‘conduct taking place entirely within the
borders of a foreign country.’
While rejecting more or less any form of
extraterritorial application and disputing remarks on ‘universal jurisdiction’
previously made on the bench by Justice Breyer, Sullivan holds that the U.S. had
‘never acceded to that.’
Underlining this position, she argues:
We fear that if we say that a United States court can be open to try any accused law of
nations violator anywhere in the world regardless of the place of the conduct, the other
nations of the world might seek to do the same to us. [...] And what we -- the precise
argument we are making here is that the presumption against application of U.S. law to
conduct within foreign sovereigns -- and remember, the purpose of the presumption,
Justice Scalia, is to avoid conflict with foreign sovereigns. [...] The conflict arises, and the
presumption protects against this conflict, when we go into a foreign nation, we project
Avoidance of international (in the sense of inter-state) conflict seems to be the
prevailing rationale which makes sense only against the background of a decisively
Kiobel v. Royal Dutch Petroleum, Oral Reargument, October 01, 2012 (hereinafter Reargument) at
https://www.oyez.org/cases/2011/10-1491 (visited, March 22, 2020).
inter-state territorial paradigm. Sovereignty of foreign states and their territorial
integrity are thus taken to be the cornerstones of this legal knowledge practice.
Arguably, international law is not rejected as a meaningful source of authority, but
it is used as a tool to draw lines, i.e. to establish a boundary between ‘our law’ and
the law of ‘foreign sovereigns.’ As a result, ‘universal jurisdiction’
is to be
practiced with restraint to prevent any collisions between the thus territorialized
regimes of nation-state jurisdiction. To be sure, state borders are not absolute
barriers to the movement of people and things. Rather than that, they are barriers
to some while remaining open to others, and especially to a global flow of
commodity. As critical geographers have pointed out, the meaning of borders as
well as the spaces they demarcate depends on an ongoing social process. As Henri
Lefebvre puts it,
Space is political and ideological. It is a product literally populated with ideologies. There
is an ideology of space. Why? Because space, which seems homogeneous, which appears
given as a whole in its objectivity, in its pure form, such as we determine it, is a social
If space is understood in this way, as social product, which is subject to ongoing
negotiation and contestation, we can ask how it is socially produced and where.
Here, I assume that one critical site for the production and reproduction of space is
law. In this sense, spatio-generative legal practice includes not only the making of
international treaties such as the Schengen Agreement but also the everyday
applications and, at times, the (temporal) suspension of such law. Legal border
regimes, in other words, are never completed. They remain being in the making
through everyday legal practice, and especially where the spatial applicability of
law appears to be indeterminate, that is where jurisdiction is put into question.
Work in the field of law and geography has demonstrated that this is in fact the
rule rather than the exception—domestically as well as globally.
As the example of Kiobel demonstrates, courtrooms can turn into sites in which
divergent geographical knowledges clash, where the meaning of space is
negotiated and contested, and where authoritative spatial determinations are
made. Courtrooms are sites of the politics of space and the legal politics of space,
to be sure. What we can see by using Kiobel as a lens is a ‘struggle for the law’
struggle for the geographical meaning of law, and a struggle in the course of which
a lot is at stake for the involved actors. As it turns out, the meaning of the concept
Wolfgang Kaleck, ‘From Pinochet to Rumsfeld. Universal Jurisdiction in Europe 1998-2008’ (2009)
30 Michigan Journal of International Law 927; Frédéric Mégret, ‘The 'Elephant in the Room' in
Debates about Universal Jurisdiction. Diasporas, Duties of Hospitality, and the Constitution of the
Political‘ (2015) 6 Transnational Legal Theory 89.
Henri Lefebvre, ‘Reflections on the Politics of Space (1970)’ in Neil Brenner and Stuart Elden (eds),
State, Space, World (Minneapolis: University of Minnesota Press, 2009) 171.
Nicholas K. Blomley et al., The legal geographies reader. Law, power, and space (Blackwell
Publishers, 2001); Irus Bravermann et al., “Introduction: Expanding the Spaces of Law” in Irus
Bravermann, Nicholas K. Blomley, David Delaney and Alexandre Kedar (eds) The expanding spaces
of law. A timely legal geography (Stanford: Stanford University Press, 2014); David Delaney, The
spatial, the legal and the pragmatics of world-making. Nomospheric investigations (New York:
Routledge, 2010); Richard T. Ford, (1999) ‘Law's Territory (A History of Jurisdiction)’ 97 Michigan
Law Review 843.
Rudolf von Jhering, Der Kampf ums Recht, 8th edn (Frankfurt am Main: Klostermann, 2003/1872).
‘territory,’ which is at the same time legal and spatial, can be a game changer since
its meaning has serious repercussions for the distribution of life chances across
the globe. What has been at stake in Kiobel is the question of what principle is
given a border-transcending validity—the principle of corporate responsibility or a
culture of corporate impunity.
In the end, it does not come as surprise that Kiobel was rejected in the Supreme
Court. For the majority of the judges, the ‘territory’ of the U.S. had not been
touched and concerned with sufficient force by the incidents in Nigeria.
Empirically, the case is thus not suitable to demonstrate a significant normative
shift in a global politico-economic order, a shift towards ‘universal jurisdiction’.
However, the case does allow for an important observation that reveals how an (in
significant parts still territorial) international order is perpetuated and how certain
actors of world society benefit from the global distribution of chance it entails. To
be sure, in the Kiobel lawsuit Shell and other multinational corporations used legal
knowledge practice to uphold a global border regime that, frankly speaking,
provides for a relatively free movement for commodity but restricts a cross-border
diffusion of justice.
It is here that the concepts of law, politics and space
To outline how I seek to establish a frame for my compiled work during this
synopsis, section 2 calls for a transdisciplinary framework for the study of the
transnational politics of law. In particular, I argue in this section that disciplinary
boundaries are to be transcended in the attempt to study law-as-politics. Section 3
situates my work in some of the theoretical discussion in the field of IR. It mainly
reviews the fields of norms research and practice theory to establish an argument
that it is crucial to account for power in the study of norms-related practice.
Section 4 draws the consequences from the discussion in section 3. To this end, it
(re-) turns to some strands of work in law and society studies to stress the
distributive function not only of legal norms but especially norms-related practice
which takes place under conditions of legal uncertainty and indeterminacy.
Studying the politics of law across space implies a transdisciplinary framework. As
the above vignette shows, law, geography, and power are related in various ways,
and it is the task of the critical theorist to explore how. Indeed, the vignette on
Kiobel can be understood from different disciplinary perspectives. For scholars in
IR, it works as a case of transnational human rights activism; for lawyers, it serves
as a landmark decision that sets future standards on what ‘transnational’ cases can
be brought in U.S. courts; and for geographers, it provides an example for the
production of space. In other words, we see different things depending on the
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).
For the concept see Paul Schiff Berman, ‘The Globalization of Jurisdiction’ (2002) 151 University
of Pennsylvania Law Review 311.
See Liste (n 2).
analytical standpoint we take. At the same time, working in one of the fields
implies the disciplinary necessity of relating to the ‘relevant literature,’ which is
different in each of the fields and usually exhibits not too many overlaps across
fields. But this does not mean that work across disciplinary boundaries never takes
place. A remarkable body of interdisciplinary work on international law has evolved
especially since the early 2000s.
As Kenneth Abbott and Duncan Snidal put it,
‘[t]he relationship between law and politics is central to the IL [international law]/IR
However, while IR scholars from a broad theoretical spectrum have
contributed to this endeavor, strangely enough, exactly those strands of work in
(international) law that have traditionally stressed the importance of ‘politics’ are
somewhat absent from the debate.
Critical legal studies,
as well as, feminist
approaches in international law have not only raised questions
on the ‘politics’ at work in and through international law but have done so in ways
that indeed resemble modes of questioning familiar also among ‘critical’ scholars
in IR. Nevertheless, the ‘crits’ on both sides of a disciplinary divide have not taken
too much notice of each other—despite the overall popularity of interdisciplinary
work on international law.
On the side of legal studies and especially law and society studies scholars call for
a ‘global’ research agenda
that includes various topics that have been subject of
See only: Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and
Duncan Snidal, ‘The Concept of Legalization’ (2000) 54 International Organization 401; Jutta
Brunnée and Stephen J. Toope. Legitimacy and Legality in International Law (Cambridge University
Press, 2010); Jeffrey L. Dunoff, and Mark A. Pollack, Eds. Interdisciplinary Perspectives on
International Law and International Relations. The State of the Art (Cambridge: Cambridge
University Press 2013); Friedrich Kratochwil, The Status of Law in Global Society (Cambridge
University Press, 2014); Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard
International Law Journal 191.
Kenneth W. Abbot and Duncan Snidal, ‘Strengthening International Regulation Through
Transnational New Governance: Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal
of Transnational Law 501.
A welcome exception is Nikolas Rajkovic, Tanja E. Aalberts, and Thomas Gammeltoft-Hansen, The
Power of Legality: Practices of International Law and their Politics (Cambridge: Cambridge
University Press, 2016).
David Kennedy, ‘A New Stream of International Law Scholarship’ (1988) 7 Wisconsin International
Law Journal 1, David Kennedy, The Dark Side of Virtue. Reassessing International Humanitarianism
(Princeton: Princeton University Press, 2004).
Hillary Charlesworth, Christine Chinkin, Shelley Wright, ‘Feminist Approaches to International Law’
(1991) 85 American Journal of International Law 613; Dianne Otto, ‘Feminist Approaches to
International Law’. In Anne Orford, Florian Hoffmann, and Martin Clark, eds. The Oxford Handbook
of the Theory of International Law. Oxford: Oxford University Press, 2016) 488.
Anthony Angie, Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press, 2005); Balakrishnan Rajagopal, International law from below. Development, social
movements, and Third World resistance (Cambridge: Cambridge University Press, 2003); Sundhya
Pahuja, Decolonising International Law. Development, Economic Growth and the Politics of
Universality (Cambridge: Cambridge University Press, 2011).
Eve Darian-Smith, Laws and Societies in Global Contexts. Contemporary Approaches (Cambridge
University Press, 2013); Heinz Klug and Sally Engle Merry (eds.), The New Legal Realism. Volume II:
Studying Law Globally (Cambridge: Cambridge University Press, 2016).
intense elaboration in IR—e.g. the global spread of human rights,
the adoption of
a gender discourse in international organizations,
governance of global finance,
the meaning of the ‘rule of law’,
or contentious issues
regarding the International Criminal Court
are addressed, though by using
different optics. Despite the obvious parallels in research interest,
work in IR are minimal and, where existent, not very substantial. On the side of IR,
the situation is not much better—with a few exceptions. While some IR scholars
now cite work in law and society studies,
it is especially one author in
international law who has attracted notice in IR—not only because of his damning
review of IR approaches to international law in a major IR journal.
meantime, Martti Koskenniemi’s work is well-received in IR and frequently serves
as a vantage point of interdisciplinary work on international legal issues.
this also includes a reflection of Koskenniemi’s link to critical legal studies.
A major aim of my work is to add to this dialogue in putting into question the
disciplinary boundaries that divide the study of politics and law.
Yet, with regard
to the usual concessions as to how academic work is produced and published, this
Sally Engle Merry, ‘New Legal Realism and the Ethnography of Transnational Law’ (2006) 31 Law
& Social Inquiry 975.
Annelise Riles, ‘[Deadlines]: Removing the Brackets on Politics in Bureaucratic and Anthropological
Analysis’. In Annelise Riles (ed), Documents. Artifacts of Modern Knowledge (Ann Arbor: University
of Michigan Press, 2006).
Annelise Riles, Collateral Knowledge. Legal Reasoning in the Global Financial Markets (Chicago:
University of Chicago Press, 2011).
Yves Dezalay and Bryant G. Garth. Dealing in virtue. International commercial arbitration and the
construction of a transnational legal order (Chicago: University of Chicago Press, 1996).
Jothie Rajah, Authoritarian Rule of Law. Legislation, Discourse and Legitimacy in Singapore (New
York: Cambridge University Press, 2012).
Sarah M.H. Nouwen, Justifying Justice. In The Cambridge Companion to International Law
(Cambridge: Cambridge University Press, 2012).
Compare only Merry (n 26); Antje Wiener, The Invisible Constitution of Politics. Contested Norms
and International Encounters (Cambridge: Cambridge University Press, 2008).
E.g. Anna Leander, ‘The Politics of Legal Arrangements: The "Duty of Care," Justifying, Extending,
and Perpetuating the Public-in-the-Private Forms of Protection’ (2018) 25 Indiana Journal of Global
Legal Studies 265.
Martti Koskenniemi, ‘Miserable Comforters. International Relations as New Natural Law’ (2009) 15
European Journal of International Relations 395.
Tanja Aalberts, ‘The Politics of International Law and the Perils and Promises of Interdisciplinarity’
(2013) 26(3) Leiden Journal of International Law 503; Kratochwil (n 19); Anna Leander and Wouter
Werner. ‘Tainted Love: The Struggle over Legality in International Relations and International Law’ in
Nikolas Rajkovic, Tanja E. Aalberts, and Thomas Gammeltoft-Hansen (ed) The Power of Legality:
Practices of International Law and their Politics (Cambridge University Press, 2006) 75-98; Liste (n
2); Rajkovic (n 21).
Philip Liste. International Relations Norms Research and the Legacies of Critical Legal Theory
(2017) Paper presented at the 11th Pan-European Conference on International Relations, ‘The
Politics of International Studies in an Age of Crises’, 13-16 September, Barcelona; Ryder McKeown
‘International Law and its Discontents: Exploring the Dark Sides of International Law in International
Relations’ (2017) 43(3) Review of International Studies 430; David Roth-Isigkeit, ‘The Blinkered
Discipline?: Martti Koskenniemi and Interdisciplinary Approaches to International Law’ (2017) 9(3)
International Theory 410.
Philip Liste, ‘The Politics of (Legal) Intertextuality’ (2010) 3 International Political Sociology 319.
endeavor is not without problems. More recently, Eve Darian-Smith and Philip
McCarty have called for a trans- rather than an interdisciplinary research strategy
and suggested a ‘global transdisciplinary framework,’ which is
both postdisciplinary and postinterdisciplinary in that it moves past the inherent limits of
conventional academic disciplines, making it possible to engage holistically with the kinds
of multifaceted global-scale challenges the world faces today.
In the past one or two decades, law and society studies have indeed been
successful in this transdisciplinary endeavor—especially with regard to the ‘global
turn’ this field is undergoing.
In fact, the movement—with its dynamic
explorations of various ‘law and …’ subfields—has effectively transcended some of
the disciplinary boundaries between law and other fields of academic endeavor. For
example, law and anthropology is not just importing ethnographical insight but
turns to law as both cultural practice and a site for ethnographic study.
literature is not importing theory from literature studies but seeks to understand
law as literature.
Law and geography is not importing insight from geography but
rather suggests studying law as geographical knowledge practice.
And law and
media does not use media theory to understand law but turns to the law’s use of
media or theatrical dispositifs and explores the perspective of law as theatre.
While these subgenres of law and society studies often reflect on the political
moment of law and legal practice, the understanding of law-as-something-else
points to a yet widely unexploited possibility: a trans- rather than an
interdisciplinary inclusion of political science and IR right in the sense
circumscribed in the above quote from Darian-Smith an McCarty. Indeed,
scholarship in IR has turned to international law, especially in the course of a
constructivist work on international norms
as well as in the so-called legalization
which remains in the spectrum of a rationalist methodology. I will turn
to some of this scholarship in the next section. But the idea is to move beyond this
point, i.e. beyond an interdisciplinary understanding of the role of international law
in international politics and beyond an understanding of international law as type
of international norms to be studied in an analytical framework of IR norms
research. Rather, the idea is to study (inter- or transnational) law as politics—and
to establish a transdisciplinary gaze at law-as-politics.
Eve Darian-Smith and Philip C. McCarty, The Global Turn: Theories, Research Designs, and
Methods for Global Studies (Oakland, CA: University of California Press, 2017) 74.
See Darian-Smith (n 25); Merry (n 26); Annelise Riles, ‘A New Agenda for the Cultural Study of
Law. Taking on the Technicalities’ (2005) 53 Buffalo Law Review 973.
Clifford Geertz Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic
Books, 1983); Mark Goodale, Anthropology and Law: A Critical Introduction (New York: New York
University Press, 2017).
Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford:
Oxford University Press, 2016) Chapter 14.
See Blomley (n 14); Braverman (n 14), Ford (n 14).
Cormelia Vismann, Medien der Rechtsprechung (S. Fischer, 2011).
See only Friedrich Kratochwil, Rules, Norms, and Decisions. On the Conditions of Practical and
Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University
See Abbott et al. (n 19).
To achieve a deeper understanding of the politics of law and thus the mechanisms
of power at work within law, it is necessary to zoom in on the sites in which law is
but also to account for the geographical knowledge practice at
work in the sites under scrutiny and to ask how the local and the global are
somewhat mutually embedded.
Hence, to study law-as-politics implies to
transcend the disciplinary boundaries between legal studies and political science,
i.e. to move from inter- to transdisciplinary work. Moreover, to study law as
transnational politics (as in the vignette above) implies to answer to the
‘multifaceted global-scale challenges’,
i.e. to study the geographical knowledge
practice that in fact enable and structure a thinking of law-as-politics. In principle,
IR theory is well-equipped to take up the challenge with regard to both, the
adaptation of a more ethnographical perspective on the sites in which law is
applied as well as its traditional emphasis on cross-border and border-transcending
politics. While I concur with the idea of a transdisciplinary research framework, the
next section will turn to IR theory. The aim is to map this field of study in order to
flesh out how writing from an IR perspective could contribute to a more
transdisciplinary work on the transnational politics of law in global studies.
To study law-as-politics beyond the nation-state, IR theory has a lot to offer. It has
a long tradition in the analysis of international power,
it has extensively studied
and, more recently, it has it has turned to practice.
Regarding the transdisciplinary work in global studies addressed in the previous
section, we could raise the issue that IR has often been rather self-referential. While
IR theorists have often imported theory from neighboring fields, IR could have
been better in also taking part in debates in which things global are elaborated
from other disciplinary perspectives. In this section, I will turn to some of the
theoretical developments in IR itself. The major line of my critique will be the
following: First, IR work on norms, despite its recent turn to practice, tends to be
silent on power. Second, those approaches that do account for the role of power in
See Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38
Hastings Law Journal 805; Bruno Latour, The Making of Law. An Ethnography of the Conseil d'Etat
(Malden, MA: Polity 2010); see Riles (n 28).
Sassen, Saskia. ‘Neither Global nor National. Novel Assemblages of Territory, Authority and
Rights’ (2008) 8 Ethics & Global Politics 61.
See Darian-Smith and Philip C. McCarty (n 38) 74.
Stefano Guzzini, ‘Structural Power: The Limits of Neorealist Power Analysis’ (1993) 47
International Organization 443; Hans J. Morgenthau, Politics Among Nations. The Struggle for
Power and Peace (New York: Alfred A. Knopf, 1978).
Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’
(1998) 52 International Organization 52, 887; Wiener (n 32).
Emanuel Adler and Vincent Pouliot ‘International Practices’ (2011) 3(1) International Theory 1;
Christian Bueger and Frank Gadinger. International practice theory (Cham: Palgrave Macmillan,
institutions tend to avoid practice. Third, recent attempts to account for power at
work in practice tend to neglect norms. Against the backdrop of this critique, I
shall argue that the three major concepts involved—norms, practice, and power—
are better addressed with regard to their ongoing interrelation.
Since work in IR has returned to studying the role of international norms in the
norms research has become a major theme in the field. Core objectives of
IR norms research have been to explain the emergence of international norms (first
generation) and to understand how an ongoing social interaction among a
multiplicity of actors affects the ontology of international norms (second
Critical constructivists have stressed that the meaning of
international norms is not fixed but can be subject to ongoing contestations—and,
as a consequence, changes—even beyond the formal settings of inter-state
In doing so, critical constructivism recognizes a productive
relationship between norms and practice, that is, between the practice of
addressing, applying, or contesting norms, on the one hand, and the meaning of
norms evolving in the course of such practice, on the other.
This insight in the
‘structure of meaning-in-use’
allows for a research strategy of ‘zooming in’ on
For the study of international norms, this methodological (and
in part ethnographical) reorientation yields some significant benefits, as especially
Maren Hofius has demonstrated.
See Kratochwil (n 52).
Emblematic statements being, for the first generation, see Finnemore and Sikkink (n 50)1998;
Thomas Risse, Stephen C. Ropp, Kathryn Sikkink, eds. The Persistent Power of Human Rights
(Cambridge: Cambridge University Press, 2013); and for the second generation, see Wiener (n 32).
See Wiener (n 32); for similar, though in IR widely unnoticed accounts in international law, see
Martti Koskenniemi, ‘What Should International Lawyers Learn from Karl Marx?’ 17 Leiden Journal of
International Law (2014) 229; Rajagopal (n 24).
Early work on norm contestation in IR left open whether contestation means the contestation of
norms as in the sense of questioning their validity (i.e. a rejection of a norm) or rather the
contestation of what a norm means in context. More recent formulations have provided some
clarification by introducing differentiations, e.g. between ‘reactive’ and ‘proactice’ contestation see
Antje Wiener, Contestation and Constitution of Norms in Global International Relations (Cambridge:
Cambridge University Press, 2018) or ‘applicatory’ and ‘validity’ contestation, see Nicole Deitelhoff
and Lisbeth Zimmermann, ‘Things We Lost in the Fire: How Different Types of Contestation Affect
the Robustness of International Norms’ (2020). 22 International Studies Review 51.
Antje Wiener, ‘Enacting Meaning-in-Use: Qualitative Research on Norms and International
Relations’ (2009) 35 Review of International Studies 175; see also Jennifer Milliken ‘The Study of
Discourse in International Relations. A Critique of Research and Methods’ (1999) 5 European
Journal of International Relations 225; Jutta Weldes and Diana Saco ‘Making State Action Possible.
The United States and the Discursive Construction of "The Cuban Problem". 1960-1994’ (1996) 25
Millennium: Journal of International Studies 361.
See Bueger and Gadinger (n 51) 141; Davide Nicolini, Practice Theory, Work & Organization
(Oxford: Oxford University Press, 2013).
Maren Hofius ‘Community at the border or the boundaries of community? The case of EU field
diplomats’ (2016) 42 Review of International Studies 939; see also Wiener (n 55).
By making use of this lens, analyses can focus on the everyday practice by inter-
and transnational experts (like diplomats or legal experts) as well as the (legal)
techniques they use in order to contest (the meaning of) norms.
As critical norms
scholars have also pointed out, the practice relevant for the production and
reproduction of norms is not limited to diplomatic staff and scenarios of the
original making of international treaties.
Rather, the in-depth perspective on
norms-related practice invites at least two further additions. First, a temporal
addition to account for the ongoing reliance on once made norms in the course of
everyday international interaction
and, second, an inclusion of a multiplicity of
actors who, now and then, enter the practice and perhaps affect the corresponding
structures of meaning-in-use.
Thus, the making of international law, the
‘diffusion’ of international regimes of human rights, the ratification of such
regimes, and their implementation on the ground,
all this is not the end of the
story. From a critical constructivist research perspective, it is just a beginning,
which generates new and in fact plural theatres for a more practice-oriented
empirical study of international norms.
Instead of reviewing this literature at length,
my aim is to put emphasis on what I
think is a not yet exhausted potential of this work. While IR norms scholars have
developed various accounts of the normativity of norms-related practice by raising
important questions as to the ‘robustness’ of norms,
how different and at times
contradictory international norms co-evolve,
how norms are ‘culturally validated,
or whose practice counts in the production and reproduction of international
this rich body of work has been rather silent as to the corresponding
implications of power. It is more recent that scholars have started to take issue
In IR, earlier work on ‘epistemic communities’ (see Peter M. Haas, ‘Introduction. Epistemic
Communities and International Policy Coordination’ (1992) 46 International Organization 1) has
indeed raised some related questions but, in doing so, has not systematically addressed the
specifics of international law and/or the everyday practice of enacting international norms. In the
field of international law, a reflexion of international legal expertise is especially addressed in the
work by Kennedy (n 22); David Kennedy, A world of struggle. How power, law, and expertise shape
global political economy (Princeton: Princeton University Press, 2016).
Antje Wiener, ’Contested compliance. Interventions on the normative structure of world politics’
(2004) 10(2) European Journal of International Relations 189.
Jan Klabbers, ‘The Meaning of Rules’ (2006) 20(3) International Relations 295.
See Wiener (n 55); As Amitav Acharya puts it, ‘[a]gency does not end after a norm is initially
accepted’, see Amitav Acharya, Constructing Global Order: Agency and Change in World Politics
(Cambridge: Cambridge University Press, 2018) 55.
See Risse and Ropp (n 53).
See only Ibid (especially chapter 2); see Hofius (n 58); Mona Lena Krook and Jacqui True,
‘Rethinking the Life Cycles of International Norms: The United Nations and the Global Promotion of
Gender Equality’ (2010) 18(1) European Journal of International Relations 103; Holger Niemann and
Henrik Schillinger ‘Contestation ‘all the way down’? The grammar of contestation in norm research’
(2017) 43(1) Review of International Studies 29; see Wiener (n 55); Jonas Wolff and Lisbeth
Zimmermann. ‘Between Banyans and battle scenes. Liberal norms, contestation, and the limits of
critique’(2016) 42(3) Review of International Studies 513.
See Deitelhoff and Zimmermann (n 55).
See Krook and True (n 64).
See Wiener (n 32).
See Wiener (n 55).
with a somewhat selective choice of certain ‘good’ international norms, i.e.
international norms that likely have an emancipatory potential for the
disadvantaged as in the various sub-fields of international human rights law.
turn, questions that, due to this selection, remain less visible are questions for how
structures of power are expressed through norms; how norms, more often than
not, serve those in power more than those subject to power; how norms serve as
tools for certain actors and for the perpetuation of the structures from which these
actors benefit; in brief, how norms enable and structure the distribution of value
and chance in (world) society. I call this the distributive function of (international)
This emphasis of a relation between norms and power reminds of—but, at the
same time, goes beyond—the earlier rationalist takes on international norms. As
Robert Keohane puts it, ‘[s]tates use the rules of international law as instruments
to attain their interests’.
And even where rationalists dig deeper into the legal
quality of international regimes, they do still acknowledge that ‘law is a
continuation of political intercourse, with the addition of other means’.
body of work does acknowledge the stakes that state actors have in the making of
international (legal) regimes as well as the power capabilities deployed with regard
to international institutions. However, this is by far not the only possibility to
acknowledge power in norms and norms-related practice. As critical approaches
have pointed out, power also comes into play where international norms express
In doing so, neo-Gramscian IR theory ties in with the
older Marxist critique of juridification and its objection to a proliferation of law that
mainly serves the interest of the ruling class by implementing a bourgeois program
of action and thus a substantial limitation of the proletariat’s political room of
Obviously, by relating norms (or institutions) and power, rationalists and Marxists
build upon different notions of power. Taking up a common typology by Michael
See Acharya (n 62).
Robert O Keohane, ‘International Relations and International Law. Two Optics’ (1997) 38 Harvard
International Law Journal 488, italics added.
See Abbott et al. (n 19) 419.
Robert W. Cox, ‘Gramsci, hegemony and international relations: an essay in method’ in Stephen
Gill (ed), Gramsci, Historical Materialism and International Relations (Cambridge: Cambridge
University Press, 1993) 60.
Otto Kirchheimer,‘Zur Staatslehre des Sozialismus und Bolschewismus‘ in Wolfgang Luthhardt
(ed), Von der Weimarer Republik zum Faschismus: Die Auflösung der demokratischen
Rechtsordnung (Frankfurt am Main: Suhrkamp, 1976) 32-52; see also Philip Liste, ‘In-Between
Juridification and Politicisation: Zooming in on the Everyday Politics of Law‘ in Claudia Wiesner (ed)
Rethinking Politicisation in Politics, Sociology and International Relations (forthcoming with Palgrave
Barnett and Raymond Duvall,
while regime theory is characterized by a motion
from a consequential to an institutional notion of power, Marxism rather operates
with a structural understanding of power (or, in part, a combination of institutional
and structural power). In the rationalist understanding, ‘actors exercise indirect
control over others, such as when states design international institutions in ways
that work to their long-term advantage and to the disadvantage of others’.
turn, while this institutional notion of power is not absent in Marxist accounts, at
least not in the Marxists attempts to account for law and institutions, the turn to
the validation of class interest through juridification and law as expression of class
hegemony goes further. Here, the power of norms is structural for it ‘produces the
very social capacities of structural, or subject, positions in direct relation to one
another, and the associated interests that underlie and dispose action’.
However, what both approaches have in common is a rather static notion of law
that lags behind what, in the meantime, has been achieved by the mentioned
critical constructivist turn to norms-related practice. A vantage point of my work
put together here is an attempt to combine the two moments, a practice-oriented
and thus dynamic study of international norms (or international law, respectively)
and an analytics of power, though in the methodological tradition of critical theory
(as in mentioned Marxist strands of work) rather than the rationalist approaches
A turn to ‘practice’ has indeed become a major theoretical debate in today’s IR.
The basic idea, as Emmanuel Adler and Vincent Pouliot put it, is that ‘world politics
can be understood as structured by practices, which give meaning to international
action, make possible strategic interaction, and are reproduced, changed, and
reinforced by international action and interaction’.
While the emphasis on
meaning as a result of social interaction parallels the critical approaches in norms
research discussed above, it is more recent that scholars have pointed to some of
the possible though widely unexploited synergies between practice theory and
Although the two strands of work have developed without much
overlap, some shared assumption seem rather obvious. On the one hand, a norms
research that turns to the reproduction of the meaning of norms through
application and contestation would obviously give analytical emphasis on how
Michael Barnett and Raymond Duvall. ‘Power in International Politics’ (2005) 59 International
Ibid, 18. For their typology, Barnett and Duvall indeed draw a sharp distinction between
institutional and structural power. While they do associate Marxism with structural power (or vice
versa), I do not agree that all Marxisms can be thus categorized. Especially where Marxists
elaborate on the role of law (for Marxist accounts of international law, see below), they arguably
turn to institutional power as well.
See Adler and Pouliot (n 51) 5; For an insightful overview about the, in the meantime, fruitful and
heterogeneous debate, see Bueger and Gadinger (n 51).
Gadinger, Frank. The Normativity of International Practices (2019). Unpubl. manuscript (on file
with the author); Hofius (n 58); Wiener (n 55).
practice relates to norms and, in doing so, reproduces the meaning of norms. As
Wiener puts it, ‘the norm lies in the practice and all practices are norm-
On the other hand, practice theory must also be interested in
normativity for it makes sense to speak of a practice only where this relates to a
social structure of meaning.
However, practice theory also parallels norms research in being rather silent on
power—a lacuna that has only been recognized more recently. As Christian Bueger
and Frank Gadinger suggest, practice theory could indeed foster important insight
in ‘the empirical workings of power in practice’.
Yet, it should be noted that
power in practice was not unseen in IR even before a debate on practice theory
took shape in the field. For example, Roxanne Doty asks to ‘give analytic priority to
By unfolding a poststructuralist framework of analysis, she argues
that the stability of structures is and remains subject to an ongoing process of
determination through practice, which is but the entry point for power.
What is introduced into the understanding of structure is both a certain amount of
indeterminacy and contingency as well as the notion that power is intimately and
inextricably involved in the “structuring of structures”. […] Meaning in general and,
therefore, the meaning of the practice which constitute structures and agents, is slippery,
unstable and always contains an excess or surplus which must be excluded. Any effect of
stability is the result of the play of power.
As a consequence, zooming in on practice also invites the scrutiny of the structural
relations of power, which are not only expressed but in fact reproduced through
practice. Moreover, a thus ethnographic orientation that practice theory now often
endorses also resonates with early feminist work in IR that has turned to the
international encounters between men and women and thus to the mostly invisible
relations of power that—so the argument goes—make ‘the world go round’.
Although not tying in with such critical traditions in the IR analysis of power, recent
work on practice revisits power by asking how it is enacted through international
practice. While the focus on the traditionally recognized resources of power such
as military strength or a strong national economy do not allow for an
understanding of how such resources are actually translated into political gains, by
contrast, Rebecca Adler-Nissen and Pouliot stress the ‘endogenous resources’ of
power in the international negotiation on the 2011 intervention in Libya, i.e. the
diplomatic actors’ competences or knowledge of how to play the game in the UN
Security Council successfully.
Drawing from the study of these negotiations, the
authors conclude that ‘[p]ower should be studied not just as the possession of
material capabilities or as discursive dominance, but also from the perspective of
See Wiener (n 55) 27.
See Bueger and Gadinger (n 51) 128.
Roxanne Lynn Doty ‘Aporia: A Critical Exploration of the Agent-Structure Problematique in
International Relations Theory’ (1997) 3 European Journal of International Relations 376.
Ibid, 379 (italics added).
Cynthia, Enloe, Bananas, Beaches & Bases. Making Feminist Sense of International Politics
(Berkeley: University of California Press, 2000).
Rebecca Adler-Nissen and Vincent Pouliot, ‘Power in Practice: Negotiating the International
Intervention in Libya’ (2014) 20 European Journal of International Relations 894.
everyday social relations, including the ways in which various resources are put to
While this is no doubt a welcome and important addition to the debate, it is
noteworthy that the practices described arguably take place in institutional
environments in which norms are omnipresent. Practice theorists do have a point
when holding that such practice is ill-conceived as rule-following. The major
function of the legal norms relied upon during a meeting of the UN Security
Council is indeed not to ‘script’ the practice of the involved actors. It is here that
practice theorists have a point in turning to competence as endogenous resource
needed to craft a ‘persuasive’ argument, i.e. an argument that unfolds a certain
force in the corresponding institutional context. But an important part of such
‘competent practice’ is to make use of norms. The major absence of norms from
the analysis of practice is thus problematic since norms do play a role in
institutional practice in that they appear as decisive tools of everyday power
politics. As such tools, norms are used to craft legal arguments and thus serve as
important means to achieve political ends. While practice theorists rightly reject
the notion that competence consists in a blind exercise of rule-following,
too quick shift from norms to practice risks throwing out the baby with the
bathwater. Put frankly, even football player Zlatan Ibrahimović needs the ball to
score a goal. Even where the diplomatic game is not about rule-following, norms
will nevertheless be a decisive element in the making of a persuasive argument.
While it is of course convincing that ‘social skills and competences’
important part in the various scenarios of international negotiations, and while
things like doing small talk in diplomatic circles no doubt contribute to the play of
power, one of the core competences in diplomacy is still to use the toolkits of
international law. An understanding of the endogenous resources such as knowing
how to use these tools, how to make a strong legal argument, etc. is key. However,
to gain insights in the workings of power, we would also need to know about the
normative force of norms, which, when understood as tools, function as
Norms will serve as a means to achieve a political purpose, be that to get through
with a certain draft resolution or to prevent such a resolution from going through
in the Council if running contrary to one’s interests. This instrumental take on the
function of norms becomes obvious when turning to how even military actors uses
Military planners also routinely use legal maps proactively to shape operations. When
fighter jets scoot along a coastline, build to a package over friendly territory before
crossing into hostile airspace, they are using the law strategically—as a shield, a marker
of safe and unsafe. […] Military action has become legal action—just as legal acts have
become weapons. Law is a strategic partner for the military when it structures logistics,
command, and control, and smoothes the interface with all the institutions, public and
private, that must be coordinated for military operation to succeed.
Iver B. Neumann, ‘Returning Practice to the Linguistic Turn. The Case of Diplomacy’ (2002) 31
Millennium: Journal of International Studies 627.
See Adler-Nissen and Pouliot (n 84) 891.
David Kennedy, Of War and Law (Princeton: Princeton University Press, 2006) 36-7.
Besides the constraining and enabling or regulatory and constitutive functions of
norms, we would need to acknowledge norms also as artefacts, things, tools or
instruments of practice. This strategic or instrumentalist view is even more
important when turning to power. With regard to the distributive function of norms
we may now ask, first, for what kind of distributive—and perhaps re-distributive—
ends certain norms are useful and, second, whether a norm’s scope of application
can be transformed through practice. In other words, in addition to the distributive
function of norms we will have to consider also the distributive function of norms-
related practice, i.e. the changes brought about through norm applications and
In sum, while norms research has canvassed that the meaning of norms remains
subject to interpretations and, at times, contestations, recent practice theory has
turned to power in practice. Yet, the former move remains silent about power, the
latter tends to neglect the role of norms in the play of power. I shall thus argue
that each move in its own right is insufficient. To clarify the necessity of a
‘triangulation’ of all three concepts—norms, practice, and power—it is helpful to
turn to the everyday practice of the lawyer for whom the major task will be to
interpret the law to serve the client. This holds true for the international legal
advisor in the foreign office whose ‘client’ is arguably the state as for any lawyer
who pleads somebody’s case in court. When representing adversarial parties to a
legal dispute lawyers will likely suggest divergent interpretations of the law and, in
the courtroom, will attempt to persuade the judges to follow the one interpretation
and not the other. It is in this sense that law is applied for a purpose and that legal
practice is driven not (only) by norms but by interest.
This bring us back to the role that norms play in this interest-based type of legal
practice. What, in other words, is the quality of the norm that allows for its
strategic use? This is of course the norm’s flexibility to which critical norms
scholars have traditionally referred or, as legal theorists have called it, the norm’s
indeterminacy. Before turning to the problem that indeterminacy presents for legal
practice, it must be noticed that the mere fact that norms are indeterminate does
not imply an ‘anything goes.’ In everyday legal scenarios norms do have a certain
meaning, which may stem from different sources whose relevance can differ
among legal systems. In theoretical terms, norms could be understood as ‘empty
vessels, waiting for someone (a court, an administrative agency, a politburo) to
pour contents into what are otherwise indeterminate notions’.
Yet, where norms
are applied this has already happened. The norm could have received its meaning
from the will of the legislator or the founding members of an international treaty.
But, as has been demonstrated also by IR norms scholars, the norm’s meaning
would also be subject to an ongoing practice as laid down for example in case law
or legal commentary. Although norms unfold their meaning for a particular case
only by being related to concrete facts, lawyers need to consider the normative
See Klabbers (n 61) 296.
preconditions, i.e. the applicatory history of the norms they may want to deploy to
‘win the case.’
However, drawing on the assumptions of intersubjectively shared background
knowledge, as both norms and practice scholars in IR often do, can be misleading
especially when we are interested in legal practice as power play (i.e. in its
law/power nexus). This is not to say that background knowledge and competent
practice are unimportant, but it makes sense to add the following clarification:
where the stakes are high legal argumentation would likely seek to arrange both
elements for strategic reasons. Background knowledge is a critical resource in the
sense that the skillful lawyer would need to know what a norm has meant in the
past (and to whom) to assess how its meaning could perhaps be adapted with
regard to her client’s present purposes. Likewise, competence will be a critical
resource inasmuch the skilled lawyer would need to have a certain feeling of how
far she could go and where the limits of a ‘creative’ and persuasive legal argument
are. Furthermore, a thus strategic use of norms and practice can also be relevant
beyond the case at hand and concentrate on changes in the normative structure of
meaning so that certain groups of actors would have better chances in future legal
It is here that we have arrived at a point where the nexus between law and power—
or norms and power, respectively—calls for a second thought. I have argued above
that norms have a distributive function in that they provide for a certain
distribution of values and chance in society. A common example is property law,
which constitutes an indeed power-laden structure in that it principally prohibits
individuals from using things they do not own themselves and, in doing so, forces
these now-owners to pay for using such things when wanting or needing them.
This applies to the food that we have to buy to eat as well as to the apartments we
will have to rent when not owning shelter ourselves. In a Marxist perspective, for
example, the law thus expresses relations of production. In other words, certain
societal relations of power are inscribed in the law that, in turn, operates as a tool
for the perpetuation of power—at least where it is backed with a state apparatus
able and willing to enforce the law. Yet, this view of inscribed power drops behind
what has been achieved by the approaches discussed so far. The mere fact that a
certain societal group has once succeeded in making a law that serves its purposes
does not mean that the meaning of the corresponding norms will ever remain the
same. Sticking to the above example, to assess the meaning that ‘property’ has as
a legal concept, we would need to take into account the process of its application,
which may include various shifts whatsoever in how a right to property is related to
communal concerns such as public interest or social responsibility.
As a result, if
we seek to bring together power, norms, and practice, we would need to account
This type of ‘strategic litigation’ is of a particular importance for actors with a more long-term
interest such as NGOs that attempt to better the circumstances of certain marginalized or exploited
groups or for multinational corporations that seek to reduce future constraints on their business
(see Liste (n 2); Liste (n 4).
Robert L. Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ (1923) 38 Political
Science Quarterly 470.
For an excellent discussion, see Daniel Loick, Der Missbrauch des Eigentums (Köln: August Verlag,
for both, structure and process, the structural relations of power in society and the
power in practice, structural and practiced power—all at once at work within law.
It is in this sense that norms are to be brought back in as a critical resource for
power in practice. In IR, the traditional choice between either power or norms is
long outdated. While structuralist accounts to norms and institutions as
expressions of international and global hegemony
have indeed moved beyond
this odd dichotomy, these approaches fall short in not providing an understanding
of complex phenomena such as norm contestation,
the ongoing development of
international law through interpretation,
or the adaption of international
institutions to diversity in international politics and world society.
opposite end of theoretical development in international studies, however,
practice-oriented attempts to focus on the power play in international institutions
remain insufficient for not taking into account the role that norms play in these
I will turn to this problem in the next section.
I have argued that to account for law as practice—and the workings of power in
this practice—it makes sense to address legal norms as critical resources of power.
Norms appear as tools, as ‘things’ used in the course of practice. Yet, it is the use
of these ‘things’ that characterizes the practice so that the focus on endogenous
resources such as skills and competence alone does not suffice. If we assume that
practice ‘makes the world go round,’
and if we further assume that this world is
today characterized by an exodus of inter- and transnational law,
then it is
necessary to understand practice as legal practice. To this end, I will now turn to
socio-legal studies broadly conceived. This shall include Jacques Derrida’s take on
some of the ‘legal realism’ as it is now revisited in
international law and global studies,
as well as, Pierre Bourdieu’s sociological
description of the ‘juridical field’.
See Cox (n 72)
See Wiener (n 32)
See Biacnhi (n 41).
See Acharya (n 62); Rajagopal (n 24).
See Adler-Nissen and Pouliot (n 84); for a similar critique, see also Wiener (n 55).
See Bourdieu (n 46) 843.
Of course, I borrow this phrase from early IR practice scholar Cynthia Enloe (1989).
Martti Koskenniemi and Päivi Leino ‘Fragmentation of International Law? Postmodern Anxieties’
(2002) 15 Leiden Journal of International Law 553; Gunther Teubner, Juridification of Social
Systems: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare
Law (Berlin: Walter de Gruyter, 1987).
Jacques Derrida, ‘Force de Loi. Le “Fondement Mystique de l’Autorité” / Force of Law: The
“Mystical Foundation of Authority”’ (1990) 11(5-6) Cardozo Law Review 941.
See Darian-Smith (n 25); Martti Koskenniemi, From Apology to Utopia. The Structure of
International Legal Argument (Cambridge University Press, 2005); Merry (n 26); Riles (n 28)
See Bourdieu (n 46).
Although still rarely acknowledged in IR, it is in fact the norms’ indeterminacy that
enables the very type of practice as also addressed in the work on norm
While legal practice consists in an ongoing attempt to determine
the meaning of applied legal norms with respect to concrete facts, and while
judges would indeed authoritatively determine what certain legal norms mean to
the case at hand, such determinations are subject to fluctuation due to ongoing
practice. And such practice is indeterminate since a norm does not contain a script
of its own application. Strictly speaking, a legal decision does not automatically
follow from the norm but must be taken by the judges in view of the norms as well
as the norms’ history. In his lecture on the Force of Law, Jacques Derrida gets to
the heart of the problem hereby involved.
But if the act simply consists of applying a rule, of enacting a program or effecting a
calculation, we might say that it is legal, that it conforms to law, and perhaps, by
metaphor, that it is just, but we would be wrong to say that the decision was just. To be
just, the decision of a judge, for example, must not only follow a rule of law or a general
law but must also assume it, approve it, confirm its value, by a reinstituting act of
interpretation, as if ultimately nothing previously existed of the law, as if the judge
himself invented the law in every case.
While Derrida’s deconstruction of the law strikingly addresses the workings of
power within law, it invites questions for the law’s normativity, which in fact
depends on making invisible the performativity by which it operates. In other
words, while Derrida convincingly points to the workings of power in law, while he
reveals even the foundation of law as an act of power (if not violence), this
approach produces a blind spot on the normativity of the law, i.e. its force as
something normative. While Derrida describes law as a chain of decisions that
build upon a more or less arbitrary interpretation of the law as it has evolved from
previous acts of ‘interpretative violence’,
he risks losing track of the law as
structure of meaning. What the deconstruction does not cover is how law operates
as practice, i.e. as operations which are not linked in the sense of a chain but
rather a web in which an infinite number of single acts of interpretive violence
nonetheless sediment into a structure of power.
The American critical legal scholars addressed by Derrida’s lecture were indeed
familiar with this way of thinking about law as well as with the pitfalls of the
indeterminacy problem. During the early 20th century the observation that ‘general
propositions do not decide concrete cases’
had stimulated the movement of legal
Antje Wiener, Theory of Contestation (Berlin: Springer, 2014). For the few uses of the concept of
legal ‘indeterminacy’ in IR, see Klabbers (n 61); Friedrich V. Kratochwil, Praxis: on Acting and
Knowing (Cambridge: Cambridge University Press, 2018) chapter 5; Liste (n 36); McKeown (n 36),
Roth-Isigkeit (n 36); Nora Stappert, ‘Practice theory and change in international law: theorizing the
development of legal meaning through the interpretive practices of international criminal courts’
(2020) 12 International Theory 33.
See Derrida (n 101) 961.
Lochner v. New York, 198 U.S. 45 (1905), Justice Holmes dissenting.
which later served as a major inspiration for critical legal studies
law and society studies.
What resonates in the deconstruction of law has been
described by the early legal realists as the law’s ‘basic myth’.
To be sure, law is
never comprehensive as a regulatory framework for society because the
complexities of future societal conflict and legal dispute can just not be anticipated
when law is legislated. Therefore, law necessarily remains uncertain. In order to be
applicable it must remain open for interpretation, that is, sufficiently open for the
interpretive application to a broad array of future cases. At the same time, this
uncertainty is not ‘an unfortunate accident: it is of immense social value’.
Jerome Frank who in fact coined the label ‘legal realism’ in a 1930 book, the core
problem was rather the divergence between the confession of law’s uncertainty
and interpretive openness, on the one hand, and the commonsensical notion of law
in society, on the other. It is here that legal realism takes issue with the common
believe in the objectivity of law. What follows is a number of indeed painstaking
Why this concealment? Have the lawyers a sinister purpose in concealing the inherent
uncertainty of law? Why, it may fairly be asked, do they keep alive the popular belief that
legal rules can be made predictable? If lawyers are not responsible for legal
indefiniteness, are they not guilty, at any rate, of duping the public as to the essential
character of law? Are they not a profession of clever hypocrites?
Of course, Frank’s intervention must be read as a provocation, which I think is
nonetheless productive with regard to what is arguably the major objective of legal
realism: to understand law in context, which includes the aim to scrutinize the
extra-legal determinants of legal decision-making.
The zest of a thus
interdisciplinary endeavor lasts until today. Legal realism provides for a shift of
perspectives, away from the axiom that law is per se ‘good’ and thus necessarily
leads to optimal results, if only properly applied. And indeed, the somewhat
darkish style of elaboration enables insights that are barred where the law insists
on a certain normative standpoint. ‘If you want to know the law […], you must look
at it as a bad man, who cares only for the material consequences which such
knowledge enables him to predict’.
Yet, the realist endeavor is a double-edged
Jerome Frank, Law and the Modern Mind (Bretano’s, 1930); Karl N. Llewellyn, ‘A Realistic
Jurisprudence -- The Next Step’ (1930) 30 Columbia Law Review 431; Roscoe Pound, The ‘Call for a
Realist Jurisprudence’ (1931) 44 Harvard Law Review 697. Note that legal realism does not relate to
realism in IR theory.
Günter Frankenberg, ‘Down by Law: Irony, Seriousness, and Reason’ (2011) 12(1) German Law
Journal 300; Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’ (1991) XV Legal Studies
Forum 350; Roberto Mangabeira Unger, The critical legal studies movement. Another time, a
greater task (London: Verso, 2015).
See Darian-Smith (n 25); Elizabeth Mertz, Stewart Macaulay, and Thomas W. Mitchell, The New
Legal Realism: Translating Law-and-Society for Today's Legal Practice (Cambridge: Cambridge
University Press, 2016).
See Frank (n 108) chapter 1.
Felix S. Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia Law
Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 459 (italics added).
sword for it is the law’s objectivity and thus the source of its normative force that
is in fact put into question. We can have it both ways. While, on the one hand, legal
realism has inspired critical analysis in how legal mechanisms reproduces societal
structures of power as in the critical legal studies movement and the law and
society studies, on the other hand, it turned into the empiricist working program of
law and economy in the course of which a ‘calculated’ law is at times believed to be
the better law.
As Martti Koskenniemi rightly recognizes, if the law cannot determine legal
practice and, thus, the authoritative decision of the ‘legal case’ must emanate from
elsewhere, the identity of law as opposed to politics is put at risk.
To cope with
the challenge theoretically, he addresses the problematique by translating the
nexus between law and politics into an everyday challenge that legal practice must
meet. The law, for Koskenniemi, needs to maintain its proximity to the social
reality in which it is embedded, and to which is has to answer while, at the same
time, creating a distance to the facts upon which it has to judge. The law, in other
words, must be concrete and normative at the same time; it ‘enjoys independence
from politics only if both of these conditions are simultaneously present’.
However, the legal attempts to meet this challenge are doomed to fail since
normativity and concreteness are mutually exclusive. Oriented toward
concreteness, law tends to become a mere depiction of actual relations of power.
As a law of the strongest, the law is a mere epiphenomenon. In this variant, law is
political for being apologetic. By contrast, when oriented towards normativity, the
emphasis must be on the law’s distance from existing power. While, in this variant,
a legal rule provides a normative instrument of criticism on concrete power, it
tends to become disconnected from the social context, i.e. the concrete relations
of power. Here, the law risks its societal irrelevance for not being able to make a
difference in social reality. Again, law is political but this time for being utopian.
On both sides, law is political and interestingly tends to fail for this very reason.
For Koskenniemi, this points to a major theoretical problem.
The fact that positions are constantly taken and solutions justified by lawyers,
demonstrate that the structure does not possess the kind of distance from politics for
which the Rule of Law seems to posit. It seems possible to adopt a position only by a
political choice: a choice which must ultimately defend itself in terms of a conception of
justice – or then remain substantively unjustified. We accept it because that is what we
To avoid law becoming ‘too political’—and thus socially irrelevant by losing its very
identity—the law itself turns to ‘political choices.’ While this answer to the realist
puzzle is arguably paradoxical, it adds a micro perspective that the earlier legal
realists have not fleshed out. ‘The main point’ in this, as Koskenniemi writes in a
Thomas J. Miles and Cass R. Sunstein, ‘The New Legal Realism’ (2008) 75 University of Chicago
Law Review 831. For an excellent overview about both streams, see Stewart Macaulay ‘The New
Versus the Old Legal Realism: Things Ain’t What They Used to Be’ (2005) Wisconsin Law Review
See Koskenniemi (n 102) 16-7.
Martti Koskenniemi, The Politics of International Law (Portland: Hart Publishing, 2011) 38.
Ibid, 40 (italics added).
reflection of his theoretical work ‘is to show how indeterminacy works in
international legal argument’.
What the realists have called the ‘law in action’ is
no longer only an entry point for power but can be analyzed as a site in which
As a result, we have a practice-oriented analytics that accounts for some of the
specificities of law. By calling for an analysis of a ‘political’ law in practice and a
better understanding of the extra-legal causes of judicial decision-making, legal
realism—old and new—interestingly presses some of the buttons also important in
recent practice theory. Moreover, one author who serves as major inspiration to a
lot of work in IR practice theory, Pierre Bourdieu, indeed draws on legal realism to
scrutinize practice in law.
Bourdieu is interested in law as social practice, and
unsurprisingly he finds himself convinced neither by the formalist assumption of
legal autonomy criticized already by the legal realists nor by a Marxist critique of
law as a mere expression of societal relations of production. In fact, this argument
very much parallels Koskenniemi’s juxtaposition of concreteness and normativity
or apology and utopia, respectively. Similar to the legal realists, Bourdieu also
recognizes the law’s indeterminacy as a critical entry point for power into law but,
writing as a sociologist, he can also not be satisfied with the cynical description of
law as a never-ending chain of acts of interpretative violence. Instead, his focus is
on the constraints of practice under the specific conditions of law understood as
the ‘juridical field.’ Similar to Derrida, Bourdieu turns to the person of the judge
and the necessity of discretion but only to quickly reverse the perspective by
understanding legal decision-making as intervention into a legal discourse and, at
the same time, as being bound in a power-laden field of social practice. To clarify
the point it makes sense to quote at some length.
In reality, the interpretation of the law is never simply the solitary act of a judge
concerned with providing a legal foundation for a decision which, at least in its origin, is
unconnected to law and reason. The judge acts neither as an interpreter meticulously
and faithfully applying the rule (as Gadamer believes), nor as a logician bound by the
deductive rigor of his “method of realization” (as Motulsky claims). The practical content
of the law which emerges in the judgment is the product of a symbolic struggle between
professionals possessing unequal technical skills and social influence. They thus have
unequal ability to marshall the available juridical resources through the exploration and
exploitation of “possible rules,” and to use them effectively, as symbolic weapons, to win
their case. The juridical effect of the rule—its real meaning—can be discovered in the
specific power relation between professionals. Assuming that the abstract equity of the
contrary positions they represent is the same, this power relation might be thought of as
corresponding to the power relations between the parties in the case.
This rich passage contains at least three aspects speaking to the problems that I
have highlighted before. First, law is clearly understood as a social practice so that
the decision by the judge cannot be understood as a ‘solitary act.’ In IR,
Ibid, 35 (italics added).
For the distinction between the ‘law in the books’ and the ‘law in action,’ see Pound (n 108).
As far as I can see, neither Bourdieu’s Force of Law nor Latour’s The Making of Law have taken
center stage in the debate, if at all. But see now Stappert (n 104). For the use of Bourdieu and
Latour in IR practice theory, see Bueger and Gadinger (n 51) chapters 3 and 4.
See Bourdieu (n 46) 827.
constructivist approaches to norms have often stressed the role of interaction,
intersubjectivity and the assumption of a collectively shared background
From the Bourdieusian perspective, the major question is not
whether norms are intersubjectively ‘shared’ among actors or whether actors agree
or disagree about the meaning of a norm due to shared or different ‘socio-cultural
Rather, professionals would opt for one or another interpretation
of a norm to win the case for the client. Interaction and practice are thus
understood in a contentious sense. What is crucial is a constellation of normative
meaning that emerges from the professional’s interpretive struggle (a social
practice) and that limits the judge’s discretion. What practice theorists in IR have
neglected though is that the constellation in which decisions on the law are taken
emerges if not (only) through constraining norms (due to their indeterminacy) but
nevertheless through an explicitly norms-related knowledge practice.
Bourdieu, power and inequalities play a decisive role in the legal field. The
is not necessarily fair, and this is because of the unequal
preconditions of the involved experts. Moreover, the mentioned asymmetries in
terms of abilities, skills, and influence arguably correspond to relations of power
also among the parties represented by the professionals. This aspect nicely adds to
the mentioned work in IR on power in practice
for it suggests a link between
unequal capabilities and competences and thus between different sources of
power. And third, norms appear as ‘available juridical resources’ that are to be
exploited. Bourdieu even goes so far to call norms ‘symbolic weapons.’ This third
aspect of course resonates with the concept of norms as critical resources of power
as introduced above. As it were, norms are not necessarily a constraint to but at
times a device of power politics.
To conclude, norms have a distributive function. Inasmuch the meaning of norms
changes by way of interpretation and contestation, we can assume that such
changes will not leave the distributive functions unaffected. Hence, what is at stake
is highly political for it concerns the ongoing juris-generative negotiation of socio-
political positions in society, including all kinds of patterns of inequality.
the distributive function of law is subject to everyday norms-related practice, which
for this very reason is to be studied as a power-laden practice. What in IR has been
called the normative structure of meaning-in-use can also be studied with regard to
its dark side, the structure of meaning-in-misuse or the structure of power-in-use,
respectively. As a consequence, to study how distribution works and changes—how
power is at work within law—we will have to zoom in on the sites in which norms
are interpreted and contested. Such sites could be diplomatic encounters,
See e.g. Brunnée and Toope (n 19).
See Wiener (n 55) 39.
See also Annelise Riles, ‘The Anti-Network: Private Global Governance, Legal Knowledge, and the
Legitimacy of the State’ (2008) 56 American Journal of Comparative Law 605.
See Bourdieu (n 46) 818.
See Adler-Nissen and Pouliot (n 84)
Thomas Piketty, Capital in the Twenty-first Century (Cambridge, MA: Belknap, 2014).
See Hofius (n 58).
meetings at the UN,
domestic or international courts,
but also sites that would
not immediately come to mind—e.g. sports (Macaulay 1987), or the back offices of
It is here—i.e. with regard to an in-depth analysis of a thus norms-related
practice—that IR can learn from the field of law and society studies where the
ethnographic study of the workings of law has a longer tradition. Interestingly,
such work has undergone two motions, which, at first sight, appear contradictory.
While on the one hand, the study of legal practice has turned to an in-depth study
of the ‘local,’ including the uses of material artefacts such as documents, forms,
on the other hand, a thus ethnographic study of legal practice has turned to
the ‘global’ and studied phenomena such as the making
international human rights law or the private regulation of global finance.
topics are of course of a particular interest also to scholars in IR. Moreover, law
and society studies often situate themselves in the tradition of legal realism—and
in part the critical legal studies movement—and thus include in their analyses a
severe interest in the production and everyday reproduction of relations of
Although not studying law ethnographically itself, my work below takes various
steps in the directions here outlined. Returning to the example given in the
beginning, the courtroom is indeed observed as a site not only of the reliance on
legal norms but also the workings of power within law. The struggle for the
meaning of territory (as a legal concept) is just a case in point. The meaning of the
Alien Tort Statute,
which I quoted in the beginning, is indeterminate. Reading the
norm in the 21st century is arguable not the same as reading it in the late 18th
century when it was enacted by the First Congress of the U.S. What do the ‘alien’
and ‘the law of nations’ mean today? What are the conditions of the norm’s
application in our temporal context? What is crucial, however the norm is
interpreted today makes a difference for it distributes values and chance among
different groups of actors in world society. In Kiobel, the US Supreme Court said
that the territory of the US must be touched and concerned with sufficient force.
In doing so, it enabled multinational corporations to ‘territorialize’ their liability
while, at the same time, reproducing the impunity for a type of abusive corporate
See Riles (n 27).
See Koskenniemi (n 118); Latour (n 46); Liste (n 4); Sarah M.H. Nouwen and Wouter G. Werner.
‘Doing Justice to the Political. The International Criminal Court in Uganda and Sudan.’ (2011) 21
European Journal of International Law 941.
Dezalay and Garth (n 29)
See Riles (n 28).
See Latour (n 46); Riles (n 28).
See Riles (n 27)
See Merry (n 26)
See Riles (n 28).
See Mertz et al. (n 110); See Klug and Merry (n 25).
28 U.S.C. § 1350 (‘The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the United States’).
Kiobel v. Royal Dutch Petroleum.
conduct, which is linked to the possibility to ‘de-territorialize’ all kinds of
commodity. Furthermore, Kiobel is a precedent case that, for the time being,
effectively prevents future victims of human rights violations in the Global South to
seek justice on US soil—except of course that victims one day bring a case that
touches and concerns the territory of the US with sufficient force. It will be up to
the judges then to decide on what force is sufficient, to reshuffle the cards, and to