Running Head: THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 1
The Ambiguous Integration of Law and Politics Zachary J. Adams Norwich University
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 2 Introduction: Within the international system, an undistinguished, yet synchronized coexistence of law and politics remains. There is a clear division of “legal” and “non-legal” statured institutions, but are undefined because of the complexity which the legalization process carries. Ambiguities between law and politics derive from compliance of actors. Both political power and international adjudication hold substantial influence towards identifying the roots of legalization. Determining how compliance functions is found through more than just reasons concerning legality, but “concerns about reciprocity, reputation, and damage to valuable state institutions, as well as other normative and material considerations, all play a role” (p. 419). Between both polarities, political and adjudicative parties inseparably assist with the institutionalization of legalization. Three variables structure and influence the dimensions of legalization: obligation, precision, and delegation. These variables presuppose variants of varying degree which entail a wide-range spectrum of influence. Given these instruments and their dimensional aptitude, actors gain the ability to construct and manipulate the elements of legalization between “hard” and “soft” law. According to Abbott et al., (2000, p. 401): “Obligation means that states or other actors are bound by a rule or commitment or by a set of rules or commitments. Specifically, it means that they are legally bound by a rule or commitment in the sense that their behavior thereunder is subject to scrutiny under the general rules, procedures, and discourse of international law, and often of domestic law as well. Precision means that rules unambiguously define the conduct they require, authorize, or proscribe. Delegation means that third parties have been
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 3 granted authority to implement, interpret, and apply the rules; to resolve disputes; and (possibly) to make further rules.” Each of the three characteristics defining legalization are not constrained to structuring only “hard” or “soft” law, but the degrees to which they operate and influence can vary tremendously. The extent which obligation, precision, and delegation can be understood in the arena of institutional construction (Abbott et al., 2000) is unclear due to the prevalence of “political pressure, informal norms, and other factors” (p. 402) that immerses both the national and international levels of law. Abbott et al. are not proposing a definitive definition of the concept of law, but attempt to arrange the components which establish law and the nature of law. Upon further analysis, this paper will emphasize Abbott et al.’s three characteristics on the concept of legalization by accommodating their demonstrated work with supplementary illustrations and examples. Obligation: Rules and commitments enforce a specific type of obligation that adjoins states and their subjects. Legal obligations impose a certain kind of obligation that does not surface from persuasion, but arise from consensual norms, procedures, and discussions found within the international system. Legal obligations must be (Abbott et al., 2000) “performed in good faith regardless of inconsistent provisions of domestic law. International law also provides principles for the interpretation of agreements and a variety of technical rules on such matters as formation, reservation, and amendments” (p. 409). It is possible that an agreement loses its binding character if certain conditions are internally altered. These precepts determine that a degree of mobility is necessary within legal commitments. By approving certain
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 4 exceptions, legal systems gain the ability to reinforce legal obligations by other means. Instances of obligation breaches do occur and the legal system has established institutional support mechanisms in order to resolve such issues. According to Abbott et al., (2000) “when a breach leads to injury, legal responsibility entails an obligation to make reparation, preferably through restitution. Since achieving such remedies is often problematic, international law authorizes self-help measures, including reprisals, reciprocal measures and retorsions” (p. 409). Settling obligatory disputes, usage of consequential punishments such as diplomatic and economic sanctions, and even far as utilizing military enforcement are all applicable approaches. Exemplifying military enforcement, self-help is limited at the international level (Abbott et al., 2000) due to the “doctrine of proportionality and other legal conditions, including restrictions on the unilateral use of force” (p. 409). At the international level, it is also evident that more misconception and misinterpretation persists between actors, but discussing international matters purely in the sense of self or state-interest and power attainment is determined an illegitimate practice throughout the arena of law. Abbott et al. state that only suggestions involving the legalization process are “terms of the text, purpose, and history of the rules, their interpretation, admissible exceptions, applicability to classes of situations, and particular facts” (p. 409). Instruments of obligation should not interfere with the actual legality of law because instruments do not conform (Abbott et al., 2000) to the “established rules of recognition” (p. 412), but are always in a state of constant rearrangement and reformulation. Ambiguities caused by nonconforming behavior of instruments may develop (more) nonbinding customary law which could have both positive and negative effects such as: increasing (soft) agreements and cooperation between actors or by consequentially lessening
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 5 the authoritative powers of “hard” law and the entire legalization process. Under certain circumstances, “hard” law can potentially be hardened as well through furthered compliance from actors. Given these brief generalities, it is imperative to remain unbiased towards the concept of legalization and the system itself. It is crucial to understand that positions of greater or lesser legalization are not inherently superior to any other form for that matter. Precision: Rules sometimes carry uncertain or vague descriptions of what expectations they entail. Precision (Abbott et al., 2000) is concerned with “narrowing the scope for reasonable interpretation” (p. 412) and how actors intend to achieve the goals of the obligation. Abbott et al., (2000) proclaim that “for a set of rules, precision implies not just that each rule in the set is unambiguous, but that the rules are related to one another in a non-contradictory way, creating a framework within which case-by-case interpretation can be coherently carried out” (p. 412). Precision carries on the duty of properly informing participants by expounding detailed and elaborated word usage outlining the requirements and requisite behavior of the implied rules. In theory, precision attempts to decrease debatable interpretations (Abbott et al., 2000) while increasing the “legitimacy of rules and thus their normative "compliance pull"” (p. 413). Through clarification of law, precision earns the ability of normatively influencing international law which is essential for administering the rule(s) of law. According to Abbott et al., (2000, p. 413): “The more "rule-like" a normative prescription, the more a community decides ex ante (based on forecasts) which categories of behavior are unacceptable; such decisions are typically made by legislative bodies. The more "standard-like" a
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 6 prescription, the more a community makes this determination ex post (based on results), in relation to specific sets of facts; such decisions are usually entrusted to courts.” Once standards are recognized and accepted, courts are able to legitimize and implement obligations. More so than not, norms (Abbott et al., 2000) are “often interpreted and applied by the very actors whose conduct they are intended to govern” (p. 414). As norms gather international popularity, precision enhances both normative and political values of law by facilitating determinacy and lessening interpretative issues by potentially shaping normative customary law into “hard” law. Delegation: Delegation administers the designation and oversight of a third party actor to uphold agreements. Abbott et al. (2000) affirm that “the characteristic forms of legal delegation are third-party dispute settlement mechanisms authorized to interpret rules and apply them to particular facts (and therefore in effect to make new rules, at least interstitially) under established doctrines of international law” (p. 415). Delegation is highly influential because actors grant a third party the authority to dispute and settle decisions which nonetheless solidifies all actors involved and increases the density of the legalization which binds them. Courts, organizations, and arbitrators are all examples of third party delegators which indirectly introduce private actors outside of the direct formulation of law. These outside actors have gained the ability to initiate opinions over established law which can feasibly influence governmental behavior and even the entire decision-making process. Having the adjudication process reviewed by delegated bodies or from outside actors help define the validity of rules and subjects that are in dispute. In essence, acknowledging that all rules,
THE AMBIGUOUS INTEGRATION OF LAW AND POLITICS 7 actors, and violations assert specificities of politics and influence on the entire legalization system, it restrains the delegated body from adapting to any conventional means of practice ensuring that the system is in a constant state of reevaluation and reconstruction. Conclusion: It is evident that no clear division between the process of legalization and world politics exists; what is understood is that there remains ambiguous integration at all levels. With regards to compliance, it has become relevant from analyzing legalization discourse that abiding by rules occurs for more reasons than legal stature or international recognition. Found somewhere amidst the antipodes of law and politics, international actors incorporate and implore altering forms of obligation, precision, and delegation. This inevitable synthesis forms a concoction infused of law and politics which ultimately shapes modern international law.
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Works Cited: Abbott, K. W., Keohane, R. O., Moravcsik, A., Slaughter, A., Snidal, D. (2000). The concept of legalization. International Organization, 54, pp. 401-419.