Explaining the Sources and Methods of International Law 189

"CONSTRUCTIVISM" AS A METHOD IN INTERNATIONAL LAW

by Phillip A. Karber

Constructivistism1 has increasingly taken on a significant role within the discipline of Inter-
national Relations over the last decade and is now being introduced into the study of
International Law.2 With it there has been a growing interest in the role of "ideas," the influence
of "culture," and the importance of "rules" in understanding global interaction. This represents
no small normative revival in the neighboring discipline of IR where established realistic
dogmas—"parsimonic theory," "state-centrality," and "systemic anarchy"—are being chal-
lenged by Constructivists with a new interest in the constitutive and regulatory "rules of the
road" and the explanatory power of viewing international relations as a complex "social
system" with multiple layers of actors operating with mixed motivations through intervening
institutions.3 Amid the mating dance over the prospect of inter-disciplinary nuptials, several
important aspects need to be addressed by IL scholars (and not just left to IR interpreters) if
we are to see this movement reach its potential as a "Method of International Law."
First, Constructivism is not merely a variant of IR political theory—as a philosophical,
social science and normative method it has a tradition that transcends the study of politics. Its
philosophical lineage can be traced from Kant4 through several streams of unorthodox twentieth
Century intellectual development,5 with the basic tenets characterized by:

" Senior Fellow, The Potomac Foundation. The views presented in this paper grew out of a conference on
"Constructivism and International Law" jointly sponsored by the Government Dept., Georgetown Univ., and the
Potomac Foundation, McLean, VA. The author wishes to express his debt to the participating colleagues and both
institutions. Due to space limitations, references are given minimal citation; a proper source bibliography is available
from the author.
1
For a term that is currently used by so many, with a conceptual pedigree that can be traced back several
centuries, the word "construct" with an "ism" applied to social theory is a relatively recent phenomena. A trail of
muiti-disciplinary usage can be tracked over the last fifty years—with the term "Constructivism" coming from
mathematics and entering philosophy in the late 1940s; developmental psychology in the 1950s; philosophy of science
in the 1960s; sociology, semiotics and learning theory in the 1970s; post-modern philosophy, anthropology, ethno-
methodology and legal studies in the 1980s; cognitive psychology, neurophysiology, and IR in the 1990s. The earliest
attempt to look at the implications of applying a method of "incomplete constructed symbols" to International Law
was by F. S. C. Northrop of Yale Law School in his studies of the "The Complexity of Legal and Ethical Experience"
in i 959 and "Philosophical Anthropology and Practical Politics" in 1960. After three decades of disuse, the term was
reintroduced into International Relations by Nicolas Onuf in his 1989 work "Worlds of Our Making."
2
For example, a generally positive discussion of Constructivism dominated both the participant and audience
comments on the Panel: "Legal Theory in Ferment: What International Legal Theory Can Learn from International
Relations Theory," Chaired by Martha Finnemore with panelists: Robert J. Beck, Christopher Joyner, and Robert D.
Vander Lugt, at the ASIL 94 Annual Meeting.
3
Five well published IR scholars have led the theoretical pursuit of Constructivism in major works—in
alphabetical order: Anthony Arend, Friedrich Kratochwil, Nicholas Onuf, John Ruggie, and Alexander Wendt—four
of which (all but the later) are equally known for their contributions in International Law. Each has had a major role
to play. To Onuf goes the credit of breaking barriers through pioneering effort and creatively combining post-modern
philosophy, social criticism and international norms into a provocative call to think differently about IR theory.
Kratochwil, re-linked Constructivism to the heritage of traditional political philosophy and pointed out that as an IR
theory it explained the dramatic changes in the international system following the cold war better than traditional
realism. Wendt argued that the international system should be viewed as a form of society, however primitive, and
thus made the case and showed the way for introducing the multidisciplinary insights of sociology. Ruggie linked
Constructivism with international institutional development over time. Arend was the first to apply a Constructivist
approach directly and exclusively to International Law.
4
Kant's Constructivist "architectonic" involves three layers of philosophical critique and reconstruction: 1).
"Scientific Inquiry" and the Construction of knowledge; 2). "Norm-related action" (symbolically Constructed social
rules); and 3). "End-related configurations" (Constructivist teleology). For Kant these layers form a vertical "edifice
complex" with knowledge as the foundation, upon which normative action builds a superstructure, capped by a
ideological roof of end-related goals. Onora O'Neill provides a helpful insight into these three types of Kantian
Constructivism in her "Constructions of Reason: Explorations of Kant's Practical Philososphy."
5
American Pragmatism (C. S. Peirce, William James, John Dewey, George Herbert Mead, Nelson Goodman,
W. V. Quine, Donald Davidson, Hillary Putnam and the neo-Pragmatists Richard Berstein and Richard Rorty); neo-
Kantian philosophy; Erkenntnistheorie (including both the Erlangen and Edinburgh schools; a wide range of
commentators from Ludwig Wittgenstein to Thomas Kuhn); and from the Radikale Konstruktivismus into "post-
modern" literature.

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 190 ASIL Proceedings, 2000

1. Relativist epistemologyf
2. Process or "inter-actionist" ontology;1 and
3. Progressive or "Developmental" teleology.s
Thus, Constructivism is much bigger—in breadth, depth, and ambition—than just another IR
method.
Second, the explanatory power of Construed vist social theory is NOT in the parsimony of
its axioms but just the opposite—the "rich" linkage of research within an interconnected "meta-
theoretical" framework that combines and connects multiple levels and units of analysis from
many different social science disciplines as illustrated in the accompanying figure.9 Where IR
scholars focus on vertical levels in an attempt to simplify theoretical propositions, "social"
Constructivists have emphasized the horizontal process by which normative identities influence
and are influenced by "rule" based structures.10 The latter stress multi-disciplinary

6
This has undoubtedly been the most controversial element of Constructivism in IR—because at first glance
it seems to fly in the face of not only common sense realism and the tenets of modern science, but also the scholar" s
mission. On the other hand, it is the emphasis on constructed "worlds of our own" that has given the movement its
post-modern cache. For many Constructivists, the position that truth is "relative" and therefore cannot be proven is
not inconsistent with a scientific effort to remove as much ignorance as possible while clarifying and expanding the
vast inter-subjective area where reasonable men can reasonably agree on those assumptions necessary to act in the
world while not abandoning a certain humility with regard to what is to be viewed an immutable "fact." The cross
over between epistemological debate in the philosophy of science and social science was originally addressed by Steve
Woolgar and Dorothy Pawluch in their 1985 journal article on "How Shall we Move Beyond Constructivism?"
7
Ontology—the branch of metaphysics traditionally dealing with the philosophical theory of what exits—has
become a key word of Constructivism by building on the process definition that what can be known must be
interacted with. While a long standing debate has broiled over whether action is caused by the movements of agents
or the long term effects of deep structures patterning human behavior—the Constructivist philosophical and social
science position has tended to focus mid-way on the co-constitution and interaction of both agency and structure
where action is reinforced through pragmatic or functional outcomes that become ingrained. Some IR Constructivists
have tried to by-pass the controversy of epistemological relativity by claiming it as an ontologocial issue, but this has
generally been more confusing than enlightening.
8
Part of this Teleological orientation comes from the "process/inter-actionist" ontology, where action implies
"a future state of affairs toward which the process of action is oriented" and therefore "the schema of action is
inherently teleological." In contrast to traditional Behaviorism, which tends to view action as "pushed" by antecedent
stimuli, Constructivism as a social learning theory has given much more weight to the "pull" effect on motivation of
anticipated prospects (both hope of gain and fear of pain). On the telic aspects of Constructivist learning theory, see
the works of Joseph Rychlak. Nevertheless, there is a very real part of Constructivist philosophy which is a value
commitment emphasizing the application of human effort for progressive social development. This is most explicit
in the American Pragmatist tradition of Dewey; but is also endemic to the teleology of Kant and readily apparent in
the progressive tradition of Symbolic-Interactionist sociology.
9
While the "levels" reflect a hierarchy of social complexity the "units" represent a continuum of behavior from
the inception of thought through extended and self-reinforcing patterns of interaction. Each "unit" is Constructed by
the successive growth of activity space in an expanded environment. Thus, in terms of "identity" it is sufficient to
differentiate the "self from "others" in terms of passive perception; but when the "others" act in ways that impact
on the "self this creates "expectations" or anticipations about future acts. At an increased level of intensity, these
anticipations begin symbolically arousing the recipient to reaction. To the extent that they "demand" a response—a
form of communication called "speech acts"—these symbolic exchanges, or interactive events, cover the spectrum
of human activity—from shared identity (Cultural commitment), to shared benefits (utilitarian or Economic
cooperation), to unshared costs (Political coercion). Each type of influence produces a different type of normative
subscription, or "Ruling Channel," unique in their constitutive nature and controlling effect. "Institutionalization"
occurs when one "ruling channel" is coupled with another in the creation, interpretation, or execution of rules, which
enable and control the "flow" of channeled activity. Institutional dominance over the interactive "demand" process
increases in proportion to the combination that all three forms of "influence"—authority recognition, exchange
efficiency and coercive power—are available in an organization. The greater the number of channels, the more
complex the organization. The more that different channels are mutually supportive, the deeper the pattern of
interaction—a process called "structuration" when extended over time with self-reinforcing functionality. The concept
of "channeling" has been applied recently by Harold Koh; Constructed "Institutionalization" is further developed in
the latest works of Walter Powell and Ronald Jepperson, and a classic is Mary Douglas' 1986 piece on "How
Institutions Think." Sociological structural functionalism built on the self-reinforcing patterns of "action" theory was
long associated with Talcott Parsons and more recently "structuration" has been rehabilitated by Anthony Giddens.
10
Of the various leading IR Constructivists, the one who has been most responsible for introducing cross-
disciplinary fertilization (in this case, particularly the concept of "identity" from the field of social-psychology) has
been Wendt.

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 Explaining the Sources and Methods of International Law 191

connectivity'' which seems to be what is needed at this stage in building a legal "method" for
international society on a global scale.12

LEVELS and U N I T S of A N A L Y S I S -
the E X P A N D E D W O R L D of C O N S T R U C T I V I S M
T r a d i t i o n a l TR T h e o r y C o n s t r u c t iv i s t
Emphasis on Parsimony Emphasis an Contextual
"Meta-Fram ework"

Svs War*
(alii

Inter-State
(Dyadic, Alliance
or Region)

<C "EL
State
(Interests fin State*
Charade ristics)

bxtrat-Stote
(Bureaucracies &
Interest Groups)

Individual
(MbtLvatLan
fie Nature)
Man*

Identity Expectations Demands Institutions Structures

(Self & (Prospects & ("Speech (tnihience in (Patterned
Other) Decisions) Acts') Interaction) Interaction)
U n i t s of A n a l y s i s
(Focus of Observation)
* Mutually exclusive IR levels as arguedby Kenneth Waltz, Man, the State **v\ti WJT-
A Theoretical AwaV^ig (New York; Colurnkda University Press, 1954) .

Third, IL should not limit itself to IR as the sole supplier and interpretive filter of Constructivist
methodology because Constructivism applied to the law needs the kind of "legal" methodology
that IL scholars can appreciate and apply.
1. There is a significant difference between loosely defined, non-institutionalized and
unenforced "norms" versus a body of authoritative and controlling rules we call
International Law.13 To be sure, "norms" and "law" represent a continuum14 but they

" Within the illustrated framework of only five "levels" and five "units" are at least a dozen socially related
human sciences with significant Constructivist components—including: biology, psychology, social-psychology,
sociology, anthropology, economics, political science, decision theory, communications, law, education, and
history—before getting to international relations, each of which have significant conceptual and lexical difficulties
communicating with one let alone all of the other disciplines.
12
The argument here does not dispute the value of explanatory "parsimony" in a developed discipline; rather,
Constructivists claim that there is a preliminary function of theory—the need to inter-relate and integrate complex
phenomena from diverse disciplines—that is required for the current "pre-theoretical" state of IL. If one is going to
view international legal life narrowly, addressing only the formal and explicit agreements between states, then
"simplistic" theory may be what is needed. However, "complex" theory is needed if one is going to apply the
discipline of IL to the rules and regulation of a global society, with the need for international law to relate to
comparative law, to a multitude of differing legal cultures, to a host of embryonic and adolescent institutions, a wide
spectrum in the degree of normative ascription and observance, and the developmental mandate to replace dependence
on unilateral "self-help" violence with community based conflict resolution.
13
Krasner calls the presence of long-standing norms that are frequently violated "organized hypocrisy."
14
It is the commonality of this continuum, and the ability it offers to generalize about normative influence that
has been the major interest of most IR Constructivists, who in tern have focused on the "norm" side rather than the
"law" side. For example, see the work of: Martha Finnemore, Audie Klotz and Nina Tannenwald.

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 192 AS1L Proceedings, 2000

also represent opposite ends of that spectrum and it is the uniqueness of how law is
"constructed" that is the special purview of IL;15
2. Domestic legal theory has not been a stranger to the development of Constructivism
in philosophy and the social disciplines outside IR16 and moreover, various Legal
scholars have made significant Constructivist contributions which could be important
for IL;17 and
3. Last, but perhaps most importantly, IL itself has had a significant (if unrecognized)
Constructivist past in the legal research program of McDougal/Lasswell and the "New
Haven" school.18 In all but name they were Constructivists in institutional
association,19 philosophy,20 behavioral social theory,21 and the methodology of
assessing international rules,22 combined with the need for an overriding commitment
to "human dignity."23
In conclusion, Constructivism has much to offer as a method of International Law. But to
realize it, IL scholars must go beyond what is offered "off-the-shelf from IR in terms of
philosophical and disciplinary breadth while digging deep in the mines of their own legal
tradition for rich veins of pre-discovered Constructivist gold.24

15
This point is clearly made in Anthony Arend's recent Constructivist work where he provides an innovative
evaluative framework by which to differentiate levels of normative ascription through the correlation of legitimized
"authority" and organized "control" in the legal process.
16
A search of the last fifteen years of American law journals shows an exponential increase in the citation of
Constructivist research, most of it borrowed from the social sciences rather than IR. Likewise, reference to
philosophical argument tended to lean more to issues of epistemology and ontology rather than political theon. An
early sociological application to law was the 1975 groundbreaking journal article by John Hagan on the "The Social
and Legal Construction of Criminal Justice."
17
Not the least of which is John Rawls's 1980s work on "Kantian Constructivism in Moral Theory."
18
However, neither the inheritors of the Yale tradition nor the more politicized advocates of post-modern social
criticism may be inclined to recognize a McDougal/Lasswell family resemblance to Constructivism.
19
Particularly Lasswell's association at the University of Chicago with the Pragmatist and Progressive tradition.
20
Note the intellectual commitment to "relativist" Epistemology; "process" Ontology; and "developmental"
Teleology as discussed above.
21
While Lasswell is known for his eclectic and multi-disciplinary borrowing, he himself stated that he preferred
the social-psychology of "inter-actionist" George Herbert Mead (now an icon of Constructivist "symbolic-
internactionism") and in fact, Lasswell expanded Mead's concept of "identity" (the differentiation of the self and
other) into an analytical framework of "process" that included "expectations," "demands," and "institutions"
consistent with the framework illustrated above.
22
Like Constructivist Arend, McDougal/Lasswell stressed the defining characteristic of the legal process in the
confluence of "authority" and "control."
23
As shown by Fernando Teson in his A Philosophy of International Law, this is a clear manifestation of
Kantian transcendental Constructivism.
24
In terms of an IL Constructivist methodology, a high payoff would seem to come from "re-constructing"
McDougal/Lasswell by:
(1) Updating their social science terminology and concepts (no small amount of Lasswell's 1930s
Freudian baggage could be jettisoned without ill effect) with a more recent Constructivist social
science lexicon;
(2) Converting their megalithic "fill-in-the-box" taxonomy into a streamlined symbolic-interactionist
"frame" approach;
(3) Revise the "value" and "decisional" components with findings from recent empirical research in
game, economic and utility theory;
(4) Combine all of these with a more developed variant of the McDougal/Lasswell "authority-control"
paradigm based on the concepts of "channeling" and institutionalized "pattern variables;" and
(5) Modernize their multi-volume classic compilations of substantive International Law with thirty years
of new cases but also a commentary that is more dialectical (reflecting the dynamic and conflictive
process they espoused) rather than attempting to be judgmentally definitive.

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