05 Aug Emerging Voices: Methodological Individualism
[Dr. Tamar Megiddo is a Research Fellow at the TraffLab Research Project at Tel Aviv University Faculty of Law.]
To suggest in 2019 that international law scholarship remains statist may immediately lift some eyebrows. Although international law scholarship had traditionally embraced a state-centric approach, many have assumed that the field has long left statism behind. In my article Methodological Individualism, forthcoming in the Harvard International Law Journal, I challenge this assumption. I argue that although mainstream international law scholarship may no longer embrace ontological statism, according to which states are the sole, or primary actors of international law, methodological statism remains widespread. Moreover, it is prevalent among scholars working with different theoretical approaches, including many who are not regularly understood to espouse any form of statism.
Methodological statism is reflected in at least four choices made by scholars of international law. First, in the choice of the state as the sole or primary unit of analysis. Second, in the acceptance of a sharp division between two separate spheres of law and politics: the national and the international. Third, in the pervasive selection of the international level as the level of analysis. Finally, fourth, methodological statism is evident in the scholarly use of individual people’s practice or positions as a proxy for state action or policy rather than as factors relevant for understanding international law in their own right.
Identified this way, it may already be evident that even liberal and constructivist scholars may be methodological statists. As Andrew Moravcsik explains, although liberal scholars do explore the influence of people on international law, they study their practice in order to understand processes of states’ preference formation. Liberals assume that states’ preferences explain their behavior at the international sphere which is liberals’ ultimate research object (Andrew Moravcsik, Liberal Theories of International Law, in Interdisciplinary Perspectives on International Law and International Relations 83, 87 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013).Therefore, in liberal international law literature, people serve as explanatory variables for state preference and behavior.
Central constructivist scholars are also methodologically committed to studying state actors. Constructivists have explained state behavior as a product of social learning processes that states undergo and peer pressure to which states are subject. (See, e.g., John Gerard Ruggie, What Makes the World Hang Together?, 52 Int’l Org. 855, 879 (1998); Ryan Goodman & Derek Jinks, Socializing States 38 (2013); Thomas Risse & Stephen C. Ropp, Introduction and Overview, in The Persistent Power of Human Rights: From Commitment to Compliance 3, 13–21 (Thomas Risse, Stephen C. Ropp & Kathryn Sikkink eds., 2013); Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 902–03 (1998)). Some of these scholars have identified the relevant social sphere as composed only of state actors and overlooked the contribution to international legal life by non-state actors. Although not all constructivists exhibit such methodological statism, central writers defend it forcefully. (See, e.g., Alexander Wendt, Social Theory of International Politics 9 (1999); Ruggie, at 879.)
There are important exceptions to this rule. Beth Simmons, Jutta Brunnée & Stephan Toope and Harold Koh are probably the most prominent outliers, and I propose building on their work to develop a better understanding of individuals’ contribution to the everyday life of international law. Nevertheless, even among such “disaggregationist” scholars, the recognition of non-state actors’ contribution to the practice of international law has often been confined to a limited cache of individual actors: state officials, such as judges (See, e.g., Eyal Benvenisti & George W. Downs, National Courts, Domestic Democracy, and the Evolution of International Law, 20 Eur. J. Int’l L. 59 (2009)) or central bankers, (See, e.g., Michael S. Barr & Geoffrey P. Miller, Global Administrative Law: The View from Basel, 17 EUR. J. INT’L L. 15 (2006)). or non-governmental organizations’ (NGO) activists (See, e.g., Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders (1998)). However, individual people are involved in the everyday life of international law in ways we have not satisfactorily accounted for. Alone, or in collaboration with others, people use international law, operate in its shadow, make sense of its guidance and produce or advocate for measures compliant or noncompliant with international norms. Individual people participate in the making, interpretation, implementation, development and breaking of international law.
To account for the contribution of ordinary individual people to international legal practice, I propose a turn to “constructivist methodological individualism” (CMI). This approach entails, first, the methodological commitment to considering all norms, structures and development of international law as ultimately explicable through actions of individual people; in other words, presuming that the everyday practice of international law is ultimately done by individual people. Crucially, CMI aims to include not only practice by political leaders or elite actors, but also, potentially, the practice of any ordinary, private individual. At the same time, second, this approach recognizes that individuals are in fact influenced and shaped to a great extent by their social context, which includes international norms and institutions. I therefore propose a simultaneous methodological commitment to considering the influence of international norms and institutions on individuals and individuals’ actions. Third, this approach entails a commitment to considering the reciprocal interaction between individuals and international law as jointly constructing the social reality in which the international legal system operates.
Jason Sandman is a concerned father: he is deeply worried for his toddler’s future in a world affected by climate change. In co-founding Climate Dads, he has sought to create a platform where parents can collaborate to take leadership in their communities in order to address the calamities that the future holds (Jason Sandman, From Urgency to Agency: Youth Leadership in the Age of Climate Awareness, Climate Dads). Following President Donald Trump’s decision (see also, here) to withdraw the United States from the Paris Agreement on climate change, Climate Dads joined thousands of U.S. cities, states, companies, universities, faith groups and tribal communities in forming a coalition of non-state, sub-federal actors, which has pledged to meet the United States’ undertakings under the Agreement in its stead. While one may be inclined to write off this movement as merely symbolic, if members of this coalition deliver on their respective pledges to cut emissions, the United States’ nationally determined contributions (NDCs) under the Paris Agreement may be met despite resistance from the Trump Administration.
In the article, I bring the U.S. Paris Agreement coalition as an example for individuals’ contribution to the implementation of international law, alongside illustrations of individuals’ participation in the making, interpretation, development and breaking of international law norms. Applying CMI reveals that people like Jason Sandman, whether acting alone or in collaboration with others, have the capacity to influence – or even decidedly determine – whether or not international law’s guidance is followed through. They have this capacity irrespective of their state, and even despite the state’s formal position. Moreover, members of the coalition perceive themselves as authentic representatives of the American people (“the actors that will provide the leadership necessary to meet our Paris commitment are found in city halls, state capitals, colleges and universities, investors and businesses.”), and have independently engaged other state parties to the Paris Agreement, (see here, here and here) as well as “the international community”. Furthermore, this story is not one about individuals shaping state action; it is about individuals working to realize an international standard that they have the capacity to realize, regardless of the state. They have mobilized not in order to set the state into motion, but rather in order to sidestep it and engage with international law directly.
Moreover, additional factors accounting for how international law operates in everyday life are revealed if we disengage from the state as the primary actor and shift the focus of analysis to individual actors. The U.S. Paris Agreement coalition brings together very different actors, each of whom is arguably motivated by different interests or values (whether economic, ideological, religious or otherwise). CMI’s contribution is in underscoring that the importance of weighing the different motivations of each individual actor, and recognizing that these may be decidedly different from whatever motivations which may be ascribed to the state actor.
Finally, the fact that members of the coalition reclaimed the authority to interpret, apply and practice international law, separately from their state, highlights avenues through which international law may find domestic traction, that often go unnoticed. Indeed, as Anne Peters has shown, international law can, and increasingly does, address individuals directly. Among many other examples, the decision adopting the Paris Agreement explicitly envisions a role for non-state actors in pursuing climate change action (The decision, “[w]elcomes the efforts of all non-Party stakeholders … including those of civil society, the private sector, financial institutions, cities and other subnational authorities” and also refers to “local communities and indigenous peoples” Conference of the Parties, Adoption of the Paris Agreement, 21st Sess. U.N. Doc. FCCC/CP/2015/L.9/Rev.1, paras. 134, 136 (Dec. 12, 2015)).
Adopting a methodological commitment to recognizing individuals’ role in the practice of international law is desirable on several grounds. First, by upholding the agential capacity of ordinary individuals, CMI rejects the implied passivity or irrelevance of individuals that follows from methodological statism. Second, by adopting a more comprehensive constructivist outlook, this approach addresses key tensions that arise from applying international relations constructivist theory to international law. Even if politics could coherently be discussed in purely inter-state relations, law is a human-oriented enterprise. I therefore call for some care in transplanting IR and other social and political theories to international law, ensuring that people deserve their due recognition in the process, and not offhandedly eliminated from view. Finally, CMI helps reveal that every individual can engage with international law and drive processes of change, both in her country and internationally, and do so irrespective of – even in spite of – state action. This capacity is not reserved to formal state officials or elite actors. It is in the hands of each and every one of us.