The theory of constructivism lends greatly to understanding the institutions of international law (IL) and why they are obeyed, how they are created, how they evolve, and how they become anew throughout international relations (IR). Examining theories by Sean Murphy will provide literature that bolsters the contribution constructivism has bestowed upon IL. Jutta Brunnee’s and Stephen Toope’s work with interactional theory will be highlighted to show how IL works quite seamlessly with constructivism within IR. Coupling constructivism with interactional theory allows the building of an imaginary graph on which we can plot the interpretation and understanding of norms and laws within IR. Uta Kohl’s writing pertaining to governance surrounding the internet, specifically the issues of jurisdiction, will be examined in order to show constructivism and interactional theory in practice.
Theory of Constructivism
Constructivism posits that actors construct, change and define their reality based upon their own interactions and perceptions of and with reality. Murphy (2006), in talking about sovereignty, gives a good example of this idea by saying “states construct one another in their relations; a concept such as sovereignty is not objectively true, but is the product of states constantly defining and redefining it through social interactions” (p. 19). At its most direct telling, constructivism is the process of interactions, interpreting those interactions, and defining ourselves and the world based off those interpretations.
Thoughts on identity, shared norms and understandings through social interaction, and the creation of institutions via a pattern of shared understanding act as units a constructivist will examine (Murphy, 2006, p. 19). The temporal attributes become apparent when delving further into the process of interactions and interpretation. Quite simply, interpretation and interaction would be ill-suited subjects for creating shared understandings if they were to only take into account the specific moment without having the past and potential future considered. It is identity and interaction that create normativity, or shared understandings. Understanding each other while communicating creates custom and law which in turn builds IL as well as the associated regimes and institutions that govern.
Interactional theory describes morality and law that can be applied to IL and IR, mainly through the legal theories of Lon L. Fuller and his aspirational morality tests. In summarizing Brunnee and Toope, who in turn are summarizing Fuller in defining what constitutes a good law, it is simplest to say that a law should be for the betterment of the shared understanding that created it (Brunnee & Toope, 2000, p. 11). For the sake of clarity, however, the specific eight tests in Fuller’s aspirational morality are: generality of rules, promulgation, limiting cases of retroactivity, clarity, avoidance of contradiction, not asking the impossible, constancy over time, and congruence of official action with underlying rules (Brunnee & Toope, 2000, p. 11).
As subtly implied in Fuller’s aspirational morality tests, there is an emphasis on the word ‘practice’ in the practice of law. The practice of law should be viewed, as said by Brunnee and Toope (2000) as an “incomplete construction that is best viewed as a continuing challenge rather than as a finished project” (p. 9). IL, when built with laws based on aspirational tests and viewed as an activity, becomes dependent on those who conduct it (Brunnee & Toope, 2000, p. 9). It is easy to see that interaction, interpretation and understandings are very important within interactional theory, just as they are in constructivism.
Coupling constructivism and interactional theory together you can start to see how IL, regimes, and institutions will affect the behavior of actors. In constructivism, identity and institutions are deeply embedded in society because of shared norms and understandings. In other words, they are considered to be legitimate or worthwhile because of our interpretations of them. Guiding IL via interactional theory secures that laws are held to an inner normativity, while the practice of law runs congruent with externally held norms. (Brunnee & Toope, 2000, p. 10). This allows us, according to Brunnee and Toope (2000), “to examine instead the processes that constitute a normative continuum bridging from predictable patterns of practice to legally required behavior” (p. 16). To further this argument, constructivism and interactional theory explain why IL and dispute resolution is legitimate and universally obeyed, in relative terms, while not denying that there will be detractors who don’t follow each and every law.
Jurisdiction in international disputes involving companies that operate via the internet provide examples of how interactions, interpretation and understandings shape IL and norms. Summarizing the case law Kohl uses to illustrate jurisdictional problems with the internet will highlight how constructivism shapes IL. Uta Kohl (2002) describes this scenario in saying every website can be accessed anywhere means that many websites affect a high number of states to such a degree as would give them a prima facie stake or interest in them and certainly an interest in regulating them. In that sense many online events are often not merely transnational but multinational. (pg. 559)
Kohl uses a case where a company operating on the internet indirectly allowed a state’s citizens to access information banned by that state. The state in question then tried the company in their own courts. The company argued that the information was held in a different state and aimed at those customers therefore jurisdiction was with the state that housed the information. They also argued they actively differentiated their products for each individual market. The verdict was in favor of the plaintiff against the company in question. The grounds were that regardless of the intended market jurisdiction the company still caused harm to the plaintiff. (Kohl, 2002, p. 559).
The position the company in reference is arguing is not out of line with current norms surrounding jurisdiction, however the internet’s inherently borderless manifestation poses the need for new interpretation. Is the plaintiff’s state actually entitled to jurisdiction in matters where the borderless nature of the internet allows unsanctioned access to information? Is it the company’s responsibility, or even within their control to curtail this access? Understanding the norms involved allows you to rationalize the decision that was made and predict that further interpretation of jurisdiction will potentially bring about altered IL. Taking the process-oriented nature of constructivism, you can potentially see the creation of an entirely new regime aimed at governance of this kind. This becomes especially true when looking at access to the internet becoming in and of itself normative.
Constructivism and interactional theory can be looked at as processes as much as they are theories. The title of each theory, to be humorous, contain words like ‘construct’ or ‘interact’ which loosely describe movement, time, and operation. Constructivism describes how our interactions build our reality, or at least our perception of reality. When those perceptions are shared they become norms that are deeply held. Interactional theory explains the formation and execution of laws in a similarly process oriented fashion, taking into account the normative qualifiers that constitute a good law. Brunnee and Toope see these theories working together creating a single continuum that describes how our shared understandings eventually become IL that is eventually reinterpreted into new IL (Brunnee & Toope, 2000, p. 16). Using the fluidity of the internet and the rigidity of jurisdiction shows how those specific norms are used, reinterpreted, understood and where they might be heading in the near future.
Burnnee, J., & Toope, S. (2000). International Law and Constructivism: Elements of an Interactional Theory of International Law. Columbia Journal of Transnational Law.
Kohl, U. (2002). Eggs, Jurisdiction, and the Internet. The International and Comparative Law Quarterly, 555-582.
Murphy, S. (2006). Principles of International Law (2nd ed., pp. 3-569).Thomson Reuters.