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SUSTAINABLE NORMATIVITY

Response to Antje Wiener

In the decade that I have known Antje Wiener, I have become aware that we share a particular affinity - one that I detect more often with native German speakers than with speakers of my own language. I should say here that Antje considers herself an English-speaking scholar; I believe she underestimates the importance of her Gymnasium years on the way she thinks. The affinity we share is an architectonic tendency in organizing our thoughts. “By architectonic [Architektonik] I understand the art of constructing systems.” So said Immanuel Kant in the Critique of Pure Reason (A832/B860; 1960, 653). No one better exemplified this tendency than Kant himself, but, among other thinkers who have influenced me, I would add Karl Marx, Max Weber, Hans Kelsen and Jurgen Habermas to this category

If German thinkers are legendary system-builders, English speakers are generally presumed to be more concrete and incremental in the way they think. Whatever the sources of my own mildly abnormal architectonic tendencies, they were exacerbated by immersion in Kelsen’s pure theory of law. My first teacher in IR and later my mentor, Robert Tucker, had been a student of Kelsen’s at Berkeley That Tucker was a prominent political realist hardly deterred him from teaching international law in a Kelsenian mode, which required that law and politics be systematically separated. When Kelsen asked Tucker to revise his Principles of International Law (1952), Tucker asked me to be his assistant. As I worked on the second edition, I came to appreciate Kelsen’s system for what it was - complete and self-contained.

For Kelsen, the defining property of a legal system is that its rules (norms) are binding on the system’s subjects. The system itself is a ‘normative order.’ Norma- tivity is the condition whereby subjects know how they ought to behave because the rules tell them so (Kelsen 1952, 6). We might ask: how do candidate-rules get normative, that is, get to be included in the system? Kelsen’s answer does not work, at least for me. For Antje, the question itself should be revised: why do rules stay normative?

Briefly stated, Kelsen saw normativity the result of two processes. Rules must be effective; if not, they cease to be binding - subjects no longer think they ought to follow them. Rules must also be valid; the validity of any rule or norm can only be “derivable from a higher, i.e., more general norm” (1952, 408). Rules must find their source in some authorizing rule, which in turn finds its source in a yet higher rule, until we reach (in a metaphorical reversal) a grundnorm, which is not a norm at all, but instead a plausible conjecture about social life: we feel that we ought to behave as we usually do behave. The problem here is a shift from some vague notion of validity (“norms are valid because of their inherent appeal”; 1952, 409) to a strictly formal, strictly procedural regress to a single norm whose inherent appeal is incontestable - so much so that it validate every single norm deriving from it.

Kelsen’s conception of validity gives him a normative order. Yet it seems less than plausible as an explanation for evident normative force of specific rules. That force comes from a rule’s oughtness; derivation from another rule just seems too tenuous, ‘inherent appeal’ just another way of talking about effectiveness in a world of sociocultural complexity Antje draws on my work to find the source of normativity in speech acts and she gives pride of place to promising. In my view, speech acts are indispensable as rule-templates to which oughtness can be affixed. Locating norma- tivity in language takes us well beyond Kelsen. Yet we cannot start with speech acts and end up with a normative order.

I have myself sought to explain ‘how things get normative’ (the title of an essay that I eventually folded into the final chapter of International Legal Theory, 2008). I concluded, at least provisionally, that the answer to the question of normativity lies in the way we use modal auxiliaries (such as could, should and must) when we talk. Of course, many languages manage to convey oughtness without the use of modal auxiliaries - every language finds a way from is to ought. Is this all there is to normativity?

I keep thinking there must be something more at work (and notice the modal auxiliary). Prompted by Gavan Duffy, I toyed with the idea that a number of “pragmatic rules” (such as economy, relevance, clarity, brevity and continuity) “are produced through social construction as an ongoing interaction among many speakers,” and function as a “necessary precondition to social construction as a normative activity” (Onuf 2008, 464). This helps perhaps, but again, there must be something more - something else in the way we speak that sustains normativity

“Sustainable normativity” is Antje’s turn of phrase and a great concern of hers. Insofar as it is easy to give things normative force simply by speaking, the hard question is how we keep things that way, especially when normativity is contested. I have considered what giving is about (and changed my view; cf. Onuf 2008, 464-466; Onuf 2013), but I have never given the same consideration to keeping things the way they are. It is easy to invoke habit or custom, as I have and Antje does too. Even here, norm and practice must be “interactively stabilized” - “sustaining and sustained by each other” (Pickering 1995, 61). For the purposes of system-building, that may be enough. Antje will have to decide this for herself as she thinks through “cultural validation” and builds a system based on “inter-cultural encounters.”

References

Kant, Immanuel. 1960 [1781/1787]. Critique of Pure Reason. Translated by Norman Kemp Smith. New York: St Martin’s.

Kelsen, Hans. 1952. Principles of International Law. New York: Holt, Rinehart, and Winston.

Onuf, Nicholas Greenwood. 2008. International Legal Theory: Essays and Engagements, 1966— 2006. Abingdon: Routledge-Cavendish.

Onuf, Nicholas Greenwood. 2013. “Relative Strangers: Reflections on Hospitality, Social Distance, and Diplomacy.” In Gideon Baker, ed., On Hospitality and World Politics, pp. 173— 196. Basingstoke: Palgrave Macmillan.

Pickering, Andrew. 1995. The Mangle of Practice: Time, Agency, and Science. Chicago: University of Chicago Press.

 
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