Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development

[Martin Totaro is an associate at Baker Botts in Washington, D.C. These views are his alone. Please find his SSRN author page here.]

Thanks to Opinio Juris for providing an outlet for VJIL authors to express their ideas to a wide audience, and thanks to VJIL for including me as one of those authors. Galit Sarfaty has graciously agreed to respond.

In my article, I attempt to make two modest contributions regarding the relationship between international law and norm internalization. First, I offer a typology that bridges the basic tenets of legal positivism and constructivism for the purpose of providing a useful framework to separate moral norms from human rights that have attained customary international law (CIL) status. Second, by using an illustrative example—the purported right to participatory development—I aim to demonstrate how the sociopolitical process of pushing toward the legalization of a moral norm can be a vibrant, robust procedure that need not prematurely accord CIL status to a norm still in the adolescent stage of rights formation under international law.

Under a commonly accepted definition of CIL, a norm only becomes a part of CIL because of general and consistent state practice taken out of a sense of legal obligation. My article focuses in part on how an international human rights norm may be internalized such that states engage in or respect the validity of a moral norm (the usage or practice prong), but states might not do so out of a sense of legal obligation (the opinio juris prong). In other words, a state may respect the moral legitimacy of a norm while simultaneously opposing the norm as a binding legal obligation.

Several scholars, including Galit Sarfaty, have focused on the dynamic process of norm-internalization at the supra-national, national, and sub-national levels. My article enters this debate by concentrating on the fluid process of norm-internalization, paying particular attention to the crystallization period but prior to a norm attaining CIL status. My analytical framework borrows from legal positivism and constructivist theory in international relations literature. As used here, at its most basic, oversimplified level, legal positivism emphasizes “the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.” H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 594 (1958). Constructivism, in contrast, refers to the process by which states and other major international actors internalize norms in a manner that has the potential to change these actors’ interests. For constructivists, a norm entrepreneur has the potential to change these actors’ interests. When combined as an analytical tool, “constructo-positivism” retains the key insights from both schools of thought—while CIL and non-CIL norms should not be conflated (i.e., distinguishing between the “is” and the “ought” in CIL), CIL can expand when a norm crystallizes to the point that major international actors engage the norm consistently and out of a sense of legal obligation. Put differently, the constructo-positivist as an explanatory matter separates moral norms from legal human rights but as a normative matter recognizes and even supports the process of legalization of certain norms.

The constructo-positivist framework provides a fresh look at the relationship between international human rights norms and legal human rights. These norms, grounded in a moral claim that a right should be viewed as binding in an international legal sense, do not attain this legal status simply because advocates push for such recognition. Rather, advocates of a particular right-claim must demonstrate that this right has become part of international law through accepted legalization conduits like treaties or CIL.

After laying out a typology of constructo-positivism, the article then applies it to the current debate over whether participatory development is a legal human right. I conclude that it is not—while major international actors like to United States and the World Bank may accept the legitimacy of participatory development as an aspirational norm, these actors do not engage in participatory development out of a sense of legal obligation.

While I argue that participatory development is not a part of the body of CIL, I then turn to how norm entrepreneurs are pressuring the Bank to internalize the right to participatory development.

These efforts have been partially successful. I examine the rhetoric and practice of the Bank with respect to participatory development, and find that, over the past twenty or so years, there has been what might be called “the inevitable bureaucratization of rhetoric.” In 1985, the World Bank discussed the virtue of participation in broad terms. Ten years later, we saw a shift toward more specific rhetoric about what participation really means. In 2005, we saw not only more complicated rhetoric, but also more structures built around this rhetoric. I focus on World Bank programs like Poverty Reduction Strategy Papers and Global Monitoring Reports that illustrate how, as the rhetoric itself developed, a wide array of norm entrepreneurs pressured and worked with the Bank to enact accountability structures to match the participatory rhetoric.

I conclude by suggesting that this process of norm-internalization indicates growing acceptance of the virtues of participatory development and its widespread practice by major international actors like the World Bank. The next shift for participatory development norm entrepreneurs will be to attempt to push for the internalization of the legal status of the norm rather than the legitimacy of the norm itself. While this norm has not yet been internalized to the point where the World Bank engages in participatory development out of a sense of legal obligation, it has been internalized as an aspirational norm.