Cognitive conflicts and the making of international law: from empirical concord to conceptual discord in legal scholarship.

• Author: d'Aspremont, Jean

TABLE OF CONTENTS I. INTRODUCTION II. EMPIRICAL CONCORD: THE PLURALIZATION OF INTERNATIONAL LAWMAKING A. Manifestations of Pluralization in the Practice of International Lawmaking B. Persisting State Dominance? III. CONCEPTUAL DISCORD: THE PARADIGMATIC DIVIDES IN THE COGNITION OF INTERNATIONAL LAWMAKING A. Subject-Based Approaches to Lawmaking B. Static Pedigree-Based Approaches to Lawmaking C. Dynamic Participation-Based Approaches to Lawmaking D. Dynamic Output-Based Approaches to Lawmaking E. Dynamic Pedigree-Based Approaches to Lawmaking . IV. EPISTEMIC PLURALISM AND EPISTEMOLOGICAL SELF-INTEREST I. INTRODUCTION

It has long been claimed that international lawmaking has grown pluralized in the sense that it has allegedly moved away from the traditional Westphalian and state-centric model of lawmaking. (1) New processes outside traditional diplomatic channels and involving non-state actors are said to qualify as lawmaking, and the products thereof have come to be ascertainable as genuine legal rules. (2) Such an assertion of a pluralization of international lawmaking is now common, and those studies that fail to give it sufficient emphasis are demoted to antediluvian scholarship. (3)

This uncontested prejudice in favor of pluralistic representations of lawmaking processes (4) calls for a preliminary remark that will inform the argument subsequently made in this Part. Although uncontested in mainstream international legal scholarship, (5) the mere finding that international lawmaking is now more heterogeneous, accommodates new forms of law-generating processes, and gives a say to new types of actors presupposes that international lawmaking was, in the past, monolithic and state-centric. In that sense, the claim of the pluralization of international law rests on a strong prejudice about the state of the prepluralized era of lawmaking. (6) In that sense, the empirical finding of a pluralization of international lawmaking, albeit being almost unanimously shared among observers and scholars, manifests consensus on some preconceived data that is the preexistence of something like the Westphalian order. Needless to say that such preconceived data is itself the expression of a construction. (7)

This being said, it is not the aim of these introductory considerations to shed a radical, skeptical veil on all attempts to make sense of international lawmaking. While acknowledging the prejudices informing the conceptualizations of lawmaking in the literature, the foregoing only means to recall the uncontroversial relativity of any basic empirical or conceptual finding about law. Indeed, one cannot seriously engage with the theories of lawmaking--as this Article is supposed to do--without bringing to mind such an elementary observation. Currently, it seems beyond dispute that the way in which lawyers construct not only law but also fact--practices of creation or application of rules--is contingent on the cognitive lens with which one has--consciously or unconsciously--chosen to look at international law. (8)

If one applies the abovementioned elementary epistemological remarks to the question of international lawmaking under discussion here, the story would go as follows. When one wants--as most international legal scholars do--to make sense of and systematize the international lawmaking process, one needs to choose a paradigm through which to cognize norm-generating processes in international law and the contours of the international legal order that these norm-generating processes create. A few dominant paradigms seem to have emerged in the literature about lawmaking processes. They ought to be briefly sketched out at this introductory stage before they are further examined in the paragraphs that follow.

When it comes to cognizing international lawmaking, one of the most dominant paradigms found in the literature has been the "subjecthood" paradigm. Indeed, subjecthood has been used to cognize all the practices of international norm-generating processes in international law. Processes that could not be captured by virtue of the concept of subjecthood would not qualify as international lawmaking. (9) Subjecthood is a static model for the apprehension of international lawmaking processes. International legal scholarship on lawmaking has also given rise to another static conceptualization of lawmaking, one grounded in the "pedigree" of the norm produced. According to this paradigm, lawmaking would be any process that leads to the creation of a norm that can be ascertained as a legal rule by virtue of its pedigree. (10) Such a form of staticism has proven more formal than the traditional approach, which is based on statehood, as the former has entailed a resort to a theory of formal sources. (11)

The paradigm of subjecthood and that of formal pedigree came under the fire of the "New Haven School," whose disciples contended that either subjecthood or pedigree must be abandoned because their inherent staticism was said not to allow one to comprehend international lawmaking processes. (12) International norm-generating processes should not be cognized on the basis of a static and arbitrary concept like subjecthood. Rather, a more dynamic cognitive tool, like that of participation, offers better cognitive tools to comprehend (the dynamics of) international lawmaking processes and their actors. (13) This old schism between staticism--associated with subjecthood--and dynamism--associated with participation--has continued uninterrupted for the last several decades, fueling immense controversy and generating reams of repetitive scholarship. (14)

Against the backdrop of a seemingly irreconcilable tension between staticism and dynamism in scholarly models of international lawmaking as well as the cognitive limitations of approaches exclusively based on participation, scholars have endeavored to develop other perspectives on international lawmaking. In particular, and as will be discussed below, new conceptualizations have attempted to understand lawmaking from the standpoint of the impact of its input. (15) This is the cognitive twist found in approaches informed by "global administrative law" (GAL) or the Heidelberg project's research on international institutions exercising public authority. Others, coming to terms with the abiding divide between the abovementioned static and dynamic approaches, have attempted to overcome the debate between subjecthood, pedigree, and participation by advocating a neostatic and neoformalistic pedigree-based approach to lawmaking. The main difference with the classic static approach originates in the pedigree being itself in constant evolution and flux and constantly allowing new norm-generating processes to be elevated to lawmaking status.

As demonstrated by this introductory overview, the international legal scholarship, in its quest for a paradigm able to apprehend international norm-generating processes qualifying as lawmaking, has been oscillating between static approaches and dynamic approaches. The former are based on the author of the norm (subjecthood) or its formal origin (pedigree) whilst the latter (e.g., participation) try to capture and explain the intricate and multidimensional fluxes between the authors of the norms and the norms themselves (impact or dynamic pedigree). International legal scholars have thus been resorting to various and diverging paradigms to make sense of international lawmaking. All of these approaches will be described in further detail below.

This Article endeavors to shed some light on the reasons guiding scholars to choose one of these paradigms. After a brief outline of the mainstream empirical construction of current norm-generating processes in international law and a further detailed description of the main cognitive choices found in international legal scholarship, this Article elaborates on the driving forces behind each of the main paradigms permeating contemporary literature on international lawmaking. In doing so, this Article draws attention to the politics of empiricism and cognition with the aim of engaging in critical self-reflection on how international legal scholars and practitioners have been making sense of international lawmaking.

2. EMPIRICAL CONCORD: THE PLURALIZATION OF INTERNATIONAL LAWMAKING

   This Part recalls the main traits of the contemporary pluralization of international lawmaking as it is empirically depicted in mainstream scholarship. While there seems to be a consensus on the principal characteristics of the move away from the Westphalian, state-centric lawmaking blueprint (Part II.A), some disagreement persists regarding the extent of the resilience of states as the principal legal actors (Part II.B). All in all, however, the phenomenon of pluralization has not been disputed. As the subsequent Part will demonstrate, the major source of disagreement among experts has not been their empirical model to understand the practice but rather the analytical tool that they have used to reconstruct that practice and its significance for international law as a whole.

   1. Manifestations of Pluralization in the Practice of International Lawmaking

      The mainstream view is that, in practice, the making of modern international law has witnessed a growing pluralization ratione personae for actors other than states have gradually increased their role in lawmaking processes. (16) As the story goes, states have ceased to be perceived as having a monopoly on international lawmaking. It is true that this has not been a completely unprecedented phenomenon. (17) Yet, this pluralization ratione personae of international lawmaking has become of a unique intensity, (18) As a result, the idea is now commonly accepted that a myriad of actors are involved nowadays in lawmaking processes, although this does not prejudge the question of who formally holds the rights and obligations created thereby. (19) Consequently, normative authority is no longer...