Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship

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TABLE OF CONTENTS  I.   INTRODUCTION II.  EMPIRICAL CONCORD: THE PLURALIZATION OF      INTERNATIONAL LAWMAKING      A. Manifestations of Pluralization in the         Practice of International Lawmaking      B. Persisting State Dominance? III. CONCEPTUAL DISCORD: THE PARADIGMATIC      DIVIDES IN THE COGNITION OF INTERNATIONAL      LAWMAKING      A. Subject-Based Approaches to Lawmaking      B. Static Pedigree-Based Approaches to         Lawmaking      C. Dynamic Participation-Based Approaches         to Lawmaking      D. Dynamic Output-Based Approaches to         Lawmaking      E. Dynamic Pedigree-Based Approaches to         Lawmaking . IV. EPISTEMIC PLURALISM AND EPISTEMOLOGICAL     SELF-INTEREST 


It has long been claimed that international lawmaking has grown pluralized in the sense that it has allegedly moved away from the traditional Westphalian and state-centric model of lawmaking. (1) New processes outside traditional diplomatic channels and involving non-state actors are said to qualify as lawmaking, and the products thereof have come to be ascertainable as genuine legal rules. (2) Such an assertion of a pluralization of international lawmaking is now common, and those studies that fail to give it sufficient emphasis are demoted to antediluvian scholarship. (3)

This uncontested prejudice in favor of pluralistic representations of lawmaking processes (4) calls for a preliminary remark that will inform the argument subsequently made in this Part. Although uncontested in mainstream international legal scholarship, (5) the mere finding that international lawmaking is now more heterogeneous, accommodates new forms of law-generating processes, and gives a say to new types of actors presupposes that international lawmaking was, in the past, monolithic and state-centric. In that sense, the claim of the pluralization of international law rests on a strong prejudice about the state of the prepluralized era of lawmaking. (6) In that sense, the empirical finding of a pluralization of international lawmaking, albeit being almost unanimously shared among observers and scholars, manifests consensus on some preconceived data that is the preexistence of something like the Westphalian order. Needless to say that such preconceived data is itself the expression of a construction. (7)

This being said, it is not the aim of these introductory considerations to shed a radical, skeptical veil on all attempts to make sense of international lawmaking. While acknowledging the prejudices informing the conceptualizations of lawmaking in the literature, the foregoing only means to recall the uncontroversial relativity of any basic empirical or conceptual finding about law. Indeed, one cannot seriously engage with the theories of lawmaking--as this Article is supposed to do--without bringing to mind such an elementary observation. Currently, it seems beyond dispute that the way in which lawyers construct not only law but also fact--practices of creation or application of rules--is contingent on the cognitive lens with which one has--consciously or unconsciously--chosen to look at international law. (8)

If one applies the abovementioned elementary epistemological remarks to the question of international lawmaking under discussion here, the story would go as follows. When one wants--as most international legal scholars do--to make sense of and systematize the international lawmaking process, one needs to choose a paradigm through which to cognize norm-generating processes in international law and the contours of the international legal order that these norm-generating processes create. A few dominant paradigms seem to have emerged in the literature about lawmaking processes. They ought to be briefly sketched out at this introductory stage before they are further examined in the paragraphs that follow.

When it comes to cognizing international lawmaking, one of the most dominant paradigms found in the literature has been the "subjecthood" paradigm. …