Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law's Rule

Abstract

AbstractAfter decades of rule-of-law promotion in world affairs, international law and legality have regained scholarly imperative. Yet this has not dissolved disciplinarity between international law (IL) and relations (IR), but furthered a priori theorizing and the unilateral extension of disciplinary research agendas. A prime example is the influential ‘legalization agenda’ of IR scholarship, where an institutionalist doctrine has renarrated the ‘L word’ through a fetishizing of rules and a managerial focus on rule compliance. However, this approach confronts a problem of relevance as international struggles increasingly involve contests over how to legally characterize issues, actions, and events, and this engages juridical and normative dimensions of rule application which are beyond the managerialism of compliance. This article argues for greater sociological and critical engagement with the way in which the concept of law operates through juridico-political practices of legality, and the aim is to provide a theoretical and empirical discussion that revives the significance of the juridico-political world for scholarships which have habitually underplayed the constitutive significance of lawyering for rule application. To do so, this article, first, addresses the profundity of Kant's work and concern over law's application by a rule-applier and, second, claims this has long invited a more critical sociology. To initiate that social exploration, the paper draws on both Pierre Bourdieu's concept of the ‘juridical effect’ and the Foucauldian notion of ‘normative law’ to theorize the significance of juridical and normative practices in the making of international law's rule. In the final section, I introduce the empirical benefit of these critical sociologies by turning to the law of armed conflict (LOAC), and the ways juridical and normative power have enabled sophisticated militaries of the developed world to constrain the application of the LOAC in contemporary wars of asymmetric combat.