Practices and the Problem of World Society

Practice, Pragmatism and Constructivism

When it comes to ‘constructivism’ as an approach itself, I think The Status of Law is not that different from Rules, Norms and Decisions. ³ In contrast to many contributions that sail under the flag of constructivism because ‘they do norms’, and norms is what constructivism is apparently all about, I think the The Status of Law is a helpful corrective. ⁴ Kratochwil aptly points out that the entire idea of norms ‘causing’ action is utterly wrong. ⁵ Instead, and here I think the The Status of Law is much more explicit than Rules, Norms and Decisions, at the heart of constructivism is the problem of double contingency. ⁶ Double contingency is not just an inter-personal decision making process as explored in game and contract theory, but operates two levels deeper: it raises the question of how two different ‘actants’ can communicate in the first place, when there is no common life-world, signal-system, or common language available? ⁷ This question was already a theme in Rules, Norms and Decisions where Kratochwil moved beyond speech act theory by arguing that it is not the semantics or illocutionary force, but the structure of the discursive interaction that controls meaning. That is: the pragmatic use of concepts and language. ⁸

From this angle, The Status of Law appears to be a continuation of Rules, Norms and Decisions. Kratochwil stays true to his interest in ‘practical reason’ and the problem of ‘praxis’ (one just needs to look at the subtitle of Rules, Norms and Decisions). ⁹ Yet, the concept ‘practice turn’ and ‘pragmatism’ are featured much more prominently since his Tartu lecture 2007 and are recurrent themes in The Status of Law. ¹⁰ Both movements are associated with a ‘primacy of acting’ which links them to practical knowledge/knowing how, the importance of experience and creativity in solving practical issues. ¹¹ In practical settings, we have to decide ‘pragmatically’ and pull strings together without solving ‘big’ epistemological problems and quarrels beforehand. For example, Kratochwil associates this perspective with an acknowledgement that:

we are always in the middle of things and cannot withdraw to an absolute point beyond time and the particular situation we are in. Instead, we have to reflect upon the options, largely framed by the institutions within which they are embedded and the context in which a problem arises, when we try to determine what do to, “all things considered”. This means that we have to understand how our choices are linked via the norms and rules to certain practices, but also how our decisions arise from a particular judgment by which we appraise and justify our chosen alternative – or get criticized perhaps even sanctioned. ¹²

Despite this common interest in the ‘primacy of acting’, I wonder whether the turn to ‘practices’ is really that ‘unproblematic’. ¹³ Of course, both pragmatism and practice theories are rather amorphous movements with a sound proportion of personal rivalries, and misunderstandings. The ‘internal’ differences in pragmatist/pragmatism between Peirce, James, Dewey and Mead are well-known. Also, the ‘turn to practice’ can range from the ‘Adler/Pouliot’ moderate-modernist version, to Gidden’s structuration, Foucault’s (non-)discursive practices up to the thought of Bourdieu, Latour and Boltanski. ¹⁴ That ‘pragmatism’ and ‘practice’ will mean different things depending on who the ‘spiritus rector’ is, can be treated as a truism. And I don’t want to say that I wish Kratochwil would have discussed Latour and Bourdieu in more detail, even though the book looks closer at ‘the problem of practice’ (as action theory) and less at practice theories. Yet apart from the fact that the question – ‘Which of these avenues is more promising and why?’ – is certainly of interest for the ‘future’ of constructivism, it does raise the question of ‘the observer’ and the sociological explication of one’s own position.

Consider for example the current development in French Social Theory: it is widely accepted that Bourdieu’s ‘oeuvre’ is described as ‘practice’ turn – and Kratochwil does suggest that ‘law’ can be seen as a ‘field’ in the Bourdieusian sense; ¹⁵ and when it comes to ‘scientific’ practices, Kratochwil refers favourably to Latour. ¹⁶ That is of course all fine – except that Latour develops his theoretical tool-kit in contrast to and as a critique of Bourdieu’s concept of ‘dispositions’ and thus the position of the observer vis-à-vis the ‘actants’. ¹⁷ Apparently, ‘Bourdieu’s dispositions’ cannot be known by the actors fully (the problem of tacit knowledge). In contrast, Latour’s ‘practices’ are not external to actors where the ‘force’ works behind their ‘back’. In contrast to Bourdieu, Latour moves ‘force’ to ‘associations’ of ‘objects’ and the strategies in the lab or a court. ¹⁸ To follow Latour and keep the ‘social’ flat (in contrast to Bourdieu), one needs to take ‘practices’ at ‘face value’. This also changes the position of the observer: in contrast to Bourdieu, the ‘observer’ cannot know ‘more’ than the actants, the observer cannot ‘criticise’ how field forces work ‘behind’ their back through dispositions. For example, consider the ‘popular’ definition by Adler and Pouliot of practices as ‘competent performances’. ¹⁹ What and whose notion of competence is relevant here? Is competence an ascription by an observer or is competence a self-description by practitioners? If ‘competence’ is an ascription, then the question is raised on what basis an observer then evaluates what ‘competence’ is and what constitutes ‘incompetence’? If ‘competence’ is a self-description, then do we, as scientists, have to believe what the practitioners tell us – even if they may strategically not engage in truth telling? Even though Kratochwil eventually is not particularly interested in this question – as it is not a major concern of his book – this question does have a repercussion on what ‘position’ constructivists can arguably claim, which literature becomes relevant, and what the limits and boundaries of ‘critique’ in constructivism are.

One example where this ‘problem of the observer’ becomes visible in Kratochwil’s discussion is the problem of ‘rule following’ and ‘use of concepts’. If one follows the ‘practice turn’ fully, then what the practitioners do and say, i.e. how they use materials and objects, use categories and concepts and ‘exchange reasons’, has to be taken at face value. We cannot simply depart from our ‘ethnographic’ point of view and ‘know better’. We even need to abstain from having pre-formed ideas in mind before we observe ‘practices’. Yet when Kratochwil identifies criteria for law to be satisfied before we can call law ‘law’ (as otherwise the ‘rules’ of the Mafia could be called law), the position of Kratochwil vis-à-vis the ‘practices’ seems to change as he does know ‘better’ than the practitioners themselves and does not ‘just observe’, ‘describe’ and ‘keep the social flat’. Kratochwil appears to be aware of the problem when he argues that ‘the notion of “order” requires something more than recognition and a set of practices, however. It emphasizes the systematic and “transcendental” conditions for the functioning of the rules that constitute our practices’. ²⁰ So if there are conditions antecedent to the practices themselves, can we analyse them by looking at these practices themselves? If not, what are then the consequences for the status of ‘practice theories’? Surely, the epistemological position of ‘practice theories’ is well taken (and hence the critique on the Cartesian ideal and the limits of ‘theoretical knowledge’). Nobody doubts that ‘theorising’ itself is a set of practices that hardly fit the ‘epistemological ideal’. Yet what else do we need apart from ‘practices’ in order to fill the ‘gap’ to ‘order’ and world society? Can we only then actually understand how ‘law is a mode of world making’ and a specific vocabulary from a practice theory fully? ²¹

The World of Law in World Society

This brings me to my second point: if the ‘diagnosis’ of an ambiguity concerning ‘the observer’ and the relation between ‘the problem of order’ and ‘practices’ is correct, then this raises the question of whether a ‘world society’ approach can be developed from a practice theory point of view? If we are always in the midst of things and observe certain practices, then we can certainly identify recurrent patterns, changes and ‘stabilizers’ over time. Yet, is it possible to move from ‘legal practices’ to the collective singular ‘law’? If law is just what we observe as ‘legal practices’, either around courts or wherever they may take place, then how do we know that there is ‘the’ law? Practice theorists often presuppose that ‘science’ takes place at specific places where it can be ‘found’. Hence, there is a reason why Latour goes into a laboratory to look at scientific practices or a court to observe ‘legal practices’. But where does this ‘disposition’, where do the concepts of ‘law’ or ‘science’ come from? I doubt that these ‘systemic concepts’ can be derived from practices alone but are antecedent to the ‘participatory observations’, just like Kratochwil rightly said that the problem of order is ‘prior’ to practices. Or is not one of the shortcomings of practice theories that ‘fields’ or ‘networks’ are there and that it is beyond the respective framework of what ‘the network of network’ or ‘field of fields’ is beyond ‘practice theories’, i.e. where they come from and how they mutually influence each other? ²²

At this point, another ‘move’ in The Status of Law seems to address this problem head on. As mentioned above, at the core of constructivism rests the acknowledgement of a contingent reality, ²³ the incorporation of other perspectives (which includes the relativity of one’s own point of view), and excluded alternatives. That was linked to the concept of ‘double contingency’. Yet, Kratochwil points to something else. ²⁴ As he argues, law cannot emerge from interactions only, but needs a concept of ‘institutional trust’, ²⁵ as he later explains:

If it is true that “law” differs from expectations emerging out of interactions, and that it differs even from expectations about expectations – since differences among these secondary expectations must be adjudicated by a court – it is also true that courts are again bound by (much looser) expectations of how such conflicts are to be settled. Clearly, the development of such tertiary expectations, which are supposed to set the tide of forum shopping or endless litigation, certain rules of regulating jurisdictional competences and discretion have to exist. ²⁶

Here something like a ‘third’ position is introduced that is irreducible to the double contingency of interactions. This ‘third’ position is needed when it comes to the question of ‘order’ or ‘law’ as a system/field with its institutional arrangement and social conditions of contingency (or unfolding of paradoxes). Kratochwil associates the ‘third’ with the position of the ‘courts’ within the legal system (maybe parallel to the ‘market’ in the economy). ²⁷ Yet, I am unsure whether the ‘third’ links well to ‘practices’? The contingency of judgements (or how to come to a decision more generally) appears to be a different problem than the institutionalisation of contingency.

For example, the concept of contingency implies ‘excluded possibilities’, non-materialised options, a ‘could have been differently’ that somehow appears beyond the ‘new empiricism’ of practice theories. To highlight contingency (single, double or triple) requires that we not only highlight the contingency of the present (and the past and the future for that matter), but make these other options visible. Hence, it requires the reconstruction of what takes place and what doesn’t, i.e. which practices take place and which do not. Yet how can this ‘other’ side, the non-materialised, excluded and contingent be reconstructed by looking at ‘practices’? For example, I do wonder whether the boundaries of sense, contingency and stability point to a distinction between ‘law’ or legal vis-à-vis ‘what is not considered legal’ with the task to reconstruct how that boundary has shifted over time. Yet, what is the status of semantic distinctions and use of concepts in practice theories? ²⁸

The Problem of Boundaries

This then brings us back to the question of order where ‘change’, continuity and (de-)stability await us. Of course, in several very rich chapters Kratochwil discusses exactly these shifts of some constitutive boundaries: the problem of fragmentation and constitutionalisation, the advent of global administrative law, and the politics of rights. And who could disagree with Kratochwil that today it is problematic to identify ‘in whose name’ legal proceedings take place. Humanity? Or as he describes it: ‘Weakness of the international legal order is due to the feeble institutionalization of the political processes rather than to the lack of laws, conventions or courts, as it is often suggested. […] nobody seems to be in charge of or able to set clear priorities. Thus, a variety of processes coexist uneasily, but the left hand frequently does not know what the right hand is doing’. ²⁹

At the same time, Kratochwil points out that the question of change cannot be de-coupled from political projects. He uses this to counter Luhmann’s systems theoretical approach to ‘global law’. In Kratochwil’s discussion of Luhmann, he criticises systems theory for its evolutionary approach to change, which is juxtaposed to the view of ‘political projects’: not evolutionary changes, but political projects change legal practices. It might be one of the ambiguities around Luhmann’s systems theory that creates this confusion, yet I do think that both views are not incompatible. In systems theory, the mechanisms of variety, selection and re-stabilisation circle around the use of concepts and this use of concepts is part of political projects. The ‘preemptive self-defense’ and now questions of cyber law are cases in point: Or consider the shift in the temporality of legal ‘operations’, i.e. the way legal arguments were used in ‘legitimising’ ‘enhanced interrogation’, terror lists, detention or other ‘preemptive measures’. Increasingly, the semantic field of norms and rules is augmented by risk-based argumentation: legal processes (and courts in particular) have to deal with an unknown future instead of with a reconstruction of the past. Change is visible in this ‘fight’ over the right interpretation, the application of categories and concepts to problems, issue areas and conflicts is key for ‘variety’ of concepts-in-use. This implies that the boundaries of what is law and what is ‘the other’ of law, beyond law – and how law is used for political purposes – is significantly changing. Nobody would eventually argue that there is an automatic or natural selection process and there is certainly enough ‘politics’ involved. Yet, the shift of concepts in use is exactly what systems theorists are after because they provide an avenue to reconstruct ‘how world-making’ happens.