Onuf on rules
Onuf is known to all scholars of international relations for his seminal contributions to Constructivism. In World of Our Making, he explored the nature of rules and rule. He argued that there is not an anarchic realm in the sense assumed by many IR scholars, but that scholars should be attending to the ways in which rules arise from linguistic conventions and categories. Drawing on a wide range of social and political theorists, Onuf charted a new path for scholarly research in international relations.
The relevance of this work for what I want to argue concerns its formulation of the relationship between rules and laws. H.L.A Hart provides one such link, famously arguing that rules become laws when secondary rules exist - those defining how primary rules are made. The interaction of the two types of rules creates something like a constitutional order (Hart 1994). In his discussion of Hart, Onuf hints at how he understands the relationship of law and constitutions. He recalls that Hart’s account sees international law as law because there is a form of secondary rules in the doctrine of sources. Yet, Onuf then cites an article he wrote some years earlier as part of a project on global law making. In that article, reprinted in his collection of legal essays, he argues that the idea that there exists a clearly defined body of sources for international law, enumerated in Article 38 of the treaty establishing the International Court of Justice, is logically paradoxical. He notes, for instance, that the source of treaties might be better understood as a source founded in the legal idea of pacta sunt servanda, or agreements must be kept. But, if this is a customary idea, what is its foundation? And does this relate to the supposed hierarchy of sources in Positivist international legal theory? Rather than the standard list of sources, he suggests that there might be others, such as resolutions from the General Assembly. He points to the Sixth Committee of the GA, which is tasked with the development of international law, as a location where global law making might actually take place. In a parenthetical note on the reprinted version from 2008, Onuf notes, ‘Looking back, I can see how naive my hopes were’ (Onuf 2008a , 97).
This disillusionment with the ability of international law to be truly ‘made’ perhaps explains the line in World of Our Making, where he says: ‘Better to say that the international order is legal to a degree that it would not be if it were to resemble a constitutional order’ (Onuf 1989, 138).
In the 1974 analysis of global law making, Onuf suggests that there are three sources of a legal order: a social contract, consensus, or social imperative. Of these three, World of Our Making highlights the latter two as the most fruitful to explore as sources of the international legal order, for there has been no international or global social contract. As a result, World of Our Making is about how a kind of underlying consensus has produced the international order. Even more so, it is about how not just social imperative but, for want of a better world, a logos imperative creates our world. That is, it is the very nature of language and its construction of the world that creates our international legal and political order. The fact that we use language creates the fact that we have rules. And those rules are the foundation or the reality of law at the global level. Because there is no real or even imaginary constitution at the global level, we are left with rules that we did not author but which exist because our words have created them.
Onuf’s wider legal writings also demonstrate how he came to see rules as the result of our language rather than our authorship. The first set of essays, roughly from the mid-1960s through the early 1980s, engage with international legal theory as it existed in the American and European traditions. These papers push the boundaries of what is possible at the time in international legal theory, addressing questions such as law making and sources. In another essay from this period, he addresses the question of reprisals, a traditional legal category to describe (and justify) the use of military force short of war (Onuf 2008b [1974b]). Rather than justify or explain reprisals in terms of natural right or natural law (as Grotius did), Onuf re-envisions the practice as a form of ritual. He turns to anthropological scholarship as a way to see such activities through a cultural lens. In this essay and others from this period, Onuf comes to the very edge of what is possible in Positivist legal theory and pushes the boundaries of that theory into new regions. The next period in his legal scholarship demonstrates how he moved from reacting to Positivist theory to transcending it. This body of work, which he calls ‘Social Theory and the Linguistic Turn’, finds him making the move to the figures and ideas that constitute the structure of World of Our Making.
As a result, along with figures such as Friedrich Kratochwil (1989), Onuf pointed scholars to the function of rules in the conduct of international affairs. In so doing, he moved away from the concerns of realists and liberals alike, whose underlying assumptions were drawn from formal rule making (i.e., legal and constitutional theory). Because of the way that realists assumed politics and law related - that is, that law arises from a formal deliberative political process leading to structures of authority and sanction that constrain individual interests - the lack of any law making or law enforcement mechanisms at the global level made the international system anarchic and incapable of being studied with the tools of domestic political theory (Wight 1964).
But in making the move away from law making, Onuf perhaps pointed Constructivist theory down a path that did not envision a possible future in which a more formalized, or perhaps differently formalized, means of law making, law enforcement, and judgment might be possible. For some, to even look in this direction is utopian, reflecting the late-nineteenth- and early twentieth-century efforts to turn liberal theory into institutions and codes that would recreate the British political and legal order writ larger (or French, or German, or Dutch, depending on the colonial starting point). The Constructivist literature that does draw from Onuf tends to focus on this first part of World of Our Making, where law results from rules that result from the logos imperative; that is, the very nature of speech means we make rules and live by them.
But Onuf did not write a book just about rules. The second half of the book, and indeed, much that followed, focuses on rule.