How, why, and with what consequences is international legal argumentation used beyond the courtroom? These and related questions lie at the heart of Talking International Law, edited by Ian Johnstone, Professor of International Law at Tufts University, and Steven Ratner, Bruno Simma Collegiate Professor of Law, University of Michigan. Johnstone and Ratner seek to draw attention to legal argumentation outside of the formal, judicial settings of (international) courtrooms, where actors typically have clear expectations on the form and content legal arguments should take (pp. 3, 340). Talking International Law sets out to capture the complexity that develops once legal argumentation is employed across the considerable diversity of international affairs’ venues, actors, and audiences, and with it their varying motivations and effects. The resulting volume is as ambitious as it is refreshing. Following introductory chapters by Johnstone and Ratner, as well as by Ingo Venzke unpacking the link between legal argumentation and legitimacy perceptions, the volume takes the reader on a journey across different subfields of international law, venues, and actors engaged in international legal argumentation. The result is an assembly of high-quality contributions across a considerable range of topics, each of which will be insightful for readers in their own right.
Talking International Law brings together perspectives from both experienced practitioners and scholars, as well as across the disciplines of International Law and International Relations. The interdisciplinary ambition of the volume is further reflected in its theoretical framing, which stands out for its nuanced cross-disciplinary engagement, including with International Relations research on communicative action, practice theory, and norms research (pp. 10–15). The volume thus goes beyond theoretical accounts that understand legal argumentation either as mere “cheap talk” on the one hand, or as fitting into “existing boxes” of different forms of compliance-oriented theories on the other (pp. 4–5, 355; Johnstone, p. 131, n. 5). Instead, Talking International Law engages with a range of possible motivations for using legal arguments, from (de)legitimation to enacting normative change in both law and the normative context in which it operates (pp. 16–17, 343).
The volume seeks to get closer to the “actual practice of legal argumentation in a variety of settings and issue areas” (p. 3). With legal argumentation as a core “everyday produc[t] of international law,”Footnote 1 the volume's focus is highly suitable to further such an interdisciplinary endeavor, especially beyond the courtroom where legal argumentation has to more clearly compete and “co-mingl[e]” with other types of arguments, be they “policy-oriented, scientific, moral, religious, emotional, economic, [or merely] expedient” (pp. 16, 339). At the same time, the volume does not stop with asking who engages in legal argumentation, with what motivations, and across which venues. Talking International Law goes further, exploring not only “what actors perceive as the added value of a legal argumentation” (pp. 16–17, 355), but also “what the added value actually turns out to be,” thereby giving attention to both audiences and effects (pp. 17–18, 355).
Talking International Law thus tackles some of the more challenging questions on international legal argumentation, especially regarding effects. The question of effects is also one of the aspects where the significant potential of further interdisciplinary and empirical research becomes particularly tangible. In his insightful chapter, Venzke examines why actors “bother” with making legal arguments by focusing on “international law's legitimacy effects—its impact on evaluative judgments about what is right and wrong” (Venzke, pp. 26, 29). From a theoretical perspective, he details how assumptions about such legitimacy effects form part of approaches broadly foregrounding logics of consequences, appropriateness and, interestingly, deference to explain actors’ behavior (Venzke, pp. 27–36). Moreover, the chapter links such theoretical considerations to burgeoning interdisciplinary experimental research on the effects of invoking legal arguments on perceptions among the general public, which is clearly highly relevant in this regard (Venzke, pp. 37–41).
Arguably at least partly as a result of its nuanced interdisciplinary engagement, one of the areas where the volume shines is in affording readers a view of the at times unexpected and unintended dynamics of international legal argumentation. Among the book's many thought-provoking contributions, Hyeran Jo finds, for example, that between 1974 and 2010, approximately 20 percent of non-state armed actors have, at least implicitly, “expressed something related to [international humanitarian law]” (Jo, p. 182). Kathleen Claussen explores how legal arguments about trade law play out not only in press statements and official communications by states, but also domestically in arguments made by members of the U.S. Congress (Claussen, pp. 298–315). One unexpected aspect is that, even “‘outside’ the courtroom,” legal argumentation may at times, “for all practical purposes, be no different from argumentation ‘inside’ the courtroom,” as Edward Kwakwa's chapter on intellectual property suggests in its analysis of decisions by the Uniform Domain Name Dispute Resolution Policy (UDRP) Panels (Kwakwa, p. 290). Other times, legal materials and arguments migrate from outside to inside courthouses, such as when internal legal memoranda not drafted for a public audience, such as by the UN's Office of Legal Affairs on the topic of the organization's privileges and immunities, find their way into official communications to the International Court of Justice (Mathias and Perez, p. 320).
Rather than propose a fully fledged theory of legal argumentation, Johnstone and Ratner explain that their goal is more preliminary, as they aim to provide “the groundwork for future theory,” with the hope of “la[ying] the foundation for a rich agenda of further research on both the practice and theory of argumentation using international law” (pp. 24, 340). In their conclusion, Johnstone and Ratner present rather complex “tentative compilation[s]” of motivations, audiences, venues, and effects based on the discussions contained in previous chapters (pp. 342, 347). In light of Talking International Law's exploratory character, and given the impossibility of doing justice to each of the volume's rich contributions in this short review, the remainder of this review instead concentrates on the volume's focus and contributions. To do so, the discussion that follows proceeds in three parts. First, I reflect on what might be at stake when seeking to answer some of the conceptual questions involved in distinguishing between legal and non-legal arguments, what trade-offs may be involved for the overall research agenda when deciding on such questions, and identify several promising avenues for future research. Next, I briefly set the volume in conversation with research on legitimacy and legitimation in International Relations. This review concludes by reflecting on the role of normative theory in the broader research agenda, including with an eye toward its epistemological foundations.
The Road Ahead: Underlying Questions and Choices
As Johnstone and Ratner explain, the volume has two central goals: for international legal scholars, particularly those interested in compliance, legal interpretation, and critical legal theory, it adds by “zero[ing] in on the actual microprocess[es]” of legal argumentation beyond the courtroom (p. 9). This focus, in turn, opens up an ambitious and novel research agenda, which aims to capture the “choices that international actors make between legal and nonlegal arguments” and their motivations for them, the role of differing venues, audiences, and legal contexts, as well as the consequences of legal argumentation (pp. 9–10). For International Relations scholars, Talking International Law highlights “the salience of legality to an argument,” rather than treating legal and other norms alike (p. 15). Johnstone and Ratner are of course correct that within International Relations, research that examines the distinctiveness of legal norms is still relatively nascent, despite recent contributions.Footnote 2 Due to this cross-disciplinary ambition, the volume is likely to be of considerable interest to scholars from both fields.
The editors offer a helpful distinction between a “minimalist” definition, which identifies a legal argument as “an argument that explicitly invokes traditional sources of law and employs the standard techniques of interpretation” (p. 16), and a “maximalist” definition, according to which a legal argument is “an argument that in any way bears on law,” and wisely leave it to individual authors to choose their own approach to explore how legal as opposed to non-legal argumentation is used across different venues and legal regimes (id.). The result is a volume that allows authors to capture forms of legal argumentation that differ in their “thickness,” from vague and even implicit references to international humanitarian law by non-state armed actors (Jo, p. 183) to detailed disagreements over the interpretation of specific treaty provisions regulating nuclear non-proliferation (Johnstone).
It is interesting that a volume that sets out to investigate legal argumentation's distinctive “purpose, nature, and effects” (p. 15), would not only surface variation in the form of legal argumentation across issue domains, but also often emphasize just how blurry the line between legal and non-legal argumentation frequently is. Notably, several chapters chronicle widespread reliance on non-binding instruments, and on non-binding provisions of legal texts, be it in the context of the African Union (AU) (chapters by Negm and Werner) or the climate regime, for which Jutta Brunnée traces how actors’ legal argumentation relies on both non-binding and binding regime elements (p. 248). Likewise, in her analysis of preambles of Chapter VI UN Security Council resolutions on women, peace, and security, Gina Heathcote traces how such preambles not only gradually increased in length, but also led to “the emergence of additional language that is not legal” (p. 91).
Legal and non-legal argumentation seem at times to be so intertwined that drawing an analytic line between them may come at the cost of glossing over such complexity. Consequently, some of the volume's chapters lean into this complexity, explicitly conceptualizing legal and non-legal arguments as existing on a sliding scale (Hakimi, p. 55) or even urging “[f]uture research [to] focus less on the ‘uniqueness’ of legal argumentation and explore the joint production of authority of diverse types of argumentation, the interplay as well as similarities and differences” (Zimmermann, p. 279). To further complicate the picture, in their conclusion, Johnstone and Ratner claim that what “counts” as “acceptable sources for a legal argument can change over time,” and that “what constitutes a legal argument, or a good one, may be traceable to the subject area” (p. 341). At the same time, they pull back from fully embracing the “messiness” of the “lived experiences of what constitutes a legal argument” (p. 342). Instead, they emphasize the “danger in considering or labeling every argument that loosely touches on law as a legal argument, for at that point it becomes difficult to ascertain the distinctiveness of a legal argument in terms of its motivations and effects” (id.).
The rich discussion that plays out across the volume raises challenging questions for those who choose to pursue an interdisciplinary research agenda that follows in Talking International Law's footsteps. Should research on legal argumentation foreground the distinctively legal character of arguments, or the choices actors have in deploying different forms of legal and non-legal argumentation? Should the focus be on understanding the lived reality of actors engaging in legal (and other) forms of argumentation beyond the courtroom, or on identifying the distinctive effects of legal as opposed to other kinds of arguments? Ultimately, there may be limits to attempting to pursue plural research goals at the same time due to the conceptual and theoretical choices that would be required—in addition to differences in the types of methods appropriate to such research, ranging from qualitative and/or doctrinal analyses to experimental research designs.
One option is to seek to understand the inner workings of legal argumentation beyond the courtroom, with the aim to unearth not only when and to what extent legal argumentation seeps into less familiar venues and contexts, but also the situated and context-dependent character of the standards, knowledge repertoires, and unspoken assumptions used when actors invoke and assess legal arguments. Such research could explore how the “grey area” between what is seen as acceptable legal and non-legal (scientific, normative, emotional) argumentation may change over time within and across different communities and venues, often while operating within a context of unequal power relations. Other interesting questions involve how and under what conditions legal and different forms of non-legal arguments interrelate and overlap, and with what consequences. Zimmermann's chapter tracing legal as opposed to scientific argumentation within the International Whaling Commission is an excellent example of the promise of such a research agenda. Distinguishing substantive from procedural legal arguments in her qualitative content analysis, her findings reveal a “division of labor, where normative and substantive legal argumentation were doing the emotional and legal procedural and scientific argumentation the technical work” (p. 275). In a similar vein, Wouter Werner's insightful contribution shows how legal argumentation enshrined in AU decisions on the International Criminal Court serves an important emotive function that heightens their appeal, as these decisions communicate emotions concerning both shared values and a common identity, as well as frustration over a lack of recognition (pp. 203–17).
At the same time, we also know that dismissing arguments as “emotional” rather than “rational(-legal)” has historically worked to delegitimize objections voiced, such as, for example, by early twentieth century female liberal pacifists against the development of international humanitarian law—so much so that the gendered (and racialized) exclusion of historical women from what is regarded as International Relations’ canon continues to this day.Footnote 3 Heathcote's excellent analysis of how the inclusion of feminist approaches in Security Council resolutions may result in sidelining transnational feminist protest and concerns points toward a similar dynamic, turning the resolutions’ preambles into “a space of forgetting, or overlooking” (p. 96). Taken together, these chapters underline the considerable value of further exploring the grey areas where legal arguments merge with, or serve to silence, other forms of arguments, and how such arguments interrelate with power.
Alternatively, a second research agenda suggested by Talking International Law would set out to identify the distinctive effects of legal as opposed to other forms of argumentation. Such a research agenda requires a conceptual framework that clearly distinguishes between both, including to use the type of experimental studies Ingo Venzke outlines in his chapter to test the impact of references to international law on public opinion (pp. 25–41). Such a research strategy, however, opens yet another set of difficulties: how to differentiate conceptually between legal argumentation, legitimation (and delegitimation), and legal interpretation? What is being legitimized, an action or an actor's exercise of authority? In either case, is it sufficient to state that an action is (il)legal under international law (or an actor is acting (il)legally), or would an engagement with the sources of law or at least legal interpretive techniques be required, as per Johnstone and Ratner's “minimalist” definition of legal arguments (p. 16)?
To give a specific example of how such distinctions may matter, how would one categorize instances in which actors refer to the law merely to legitimize their own position vis-à-vis non-legal audiences, but without concern for whether these arguments are accepted as valid by international lawyers? As Johnstone and Ratner observe regarding the role of consistency in legal argumentation, making “[h]ypocritical arguments may nonetheless have some benefits for an actor, for instance, with domestic audiences that do not realize that the actor's argument is inconsistent with previous positions” (p. 353). At the same time, when reflecting on where to draw the line between what can be reasonably included in a definition of legal argumentation, they caution against the inclusion of a mere “casual mention of a legal instrument” (p. 342). However, what if audiences do not have the tools or required information independently to assess the quality of such “legal” argumentation, and are confronted with a mere assertion—however unconvincing from a legal standpoint—that a decision or action is in line with or violates international law? At a time when truth is under siege and traditional sources of authority are widely discredited, one of the more pressing research questions here is not only what effect legal assertions may have across different types of audiences, but also how, by whom, and under what circumstances such (mere) assertions can be effectively challenged.
Future interdisciplinary studies on legal argumentation may also address whether legal argumentation outside the courtroom is perceived as just one form of argumentation among many (which risks underestimating law's role), or whether the primary focus should be on legal argumentation alone (which risks overestimating the prevalence and force of legal arguments). In this regard, one of Talking International Law's many strengths is that it features several thoughtful contributions that shed light on the absence of legal argumentation in various contexts. Such absences include instances in which actors opt not to call out violations of international law, especially in highly politicized contexts, such as in discussions of mass atrocity crimes at the UN Security Council (Stagno-Ugarte, pp. 170–71). As Ratner points out, in the context of cybersecurity, states may prefer to keep their technological capabilities secret, thereby limiting the possibilities for (public) legal argumentation (Ratner, p. 111). Furthermore, legal argumentation may get displaced by other types of expertise and expert communities, if actors decide that they “can work this issue out without the lawyers” (Ratner, p. 118). Indeed, writing from his experience as senior legal counsel in the UN Security Council, Scott P. Sheeran urges international lawyers to look beyond the law, including by invoking underlying normative principles, to be most effective when attempting to convince “nonlawyer diplomats” (Sheeran, p. 81). It may be particularly useful to explore these absences and silences further, to help steer between the risks of over- and underestimating legal argumentation's role in world politics. Importantly, as Monica Hakimi's argues in her insightful analysis of legal argumentation about the jus ad bellum, not engaging in legal argumentation is also likely to come at a considerable cost to rule of law values, no matter how “open-textured and contentious” the respective area of law may be (Hakimi, pp. 48, 55–61).
Interdisciplinarity Revisited: Legitimacy, (De)Legitimation, and Its Audiences
To further build on Johnstone and Ratner's call for a more comprehensive research agenda on legal argumentation, additional cross-engagement with International Relations scholarship, both in terms of theory and methods, is likely to be particularly useful. Venzke's engagement with experimental research at the intersection between International Relations, International Law, and Psychology on the effects of legal arguments on public opinion is noteworthy in this context. His suggestions to conduct additional research on different types of legitimacy audiences beyond the United States and further explore law's distinctive authority and its ability to not only constrain, but also enable are highly salient (Venzke, pp. 39–41). Talking International Law can thus also be read as speaking to International Relations research on legitimacy in world politics, which empirically studies when and why international organizations are either perceived as legitimate or questioned in their legitimacy, and through which processes, with what effects, and vis-à-vis which audiences international organizations are legitimated and delegitimated.Footnote 4 Within this body of research, attention to legality as a distinctive source of legitimacy likewise remains underexplored. Instead, such research typically distinguishes between different types of institutional sources (i.e., features of the international organization that may impact legitimacy beliefs), with a focus on levels of delegated authority, procedures, and performance.Footnote 5
There is considerable potential for additional cross-disciplinary exchange in advancing a broader research agenda on legal argumentation beyond the courtroom, including by further conceptualizing and tracing the distinctive role of legal arguments for legitimacy beliefs and (de)legitimation processes. For example, International Relations research on the legitimacy of international organizations has not only pointed out that the standards for evaluating an international organization's legitimacy differs across different audiences,Footnote 6 but also that the audiences vis-à-vis which international organizations legitimate themselves have diversified,Footnote 7 with the result that legitimation strategies directed at different audiences may be in tension with each other.Footnote 8 Future research should explore whether similar processes are taking place across different venues of international legal argumentation, and in how far a changing institutional context and potentially increased levels of public visibility and/or politicization of the venue itself shapes how, why, and vis-à-vis which audiences actors engage in legal argumentation. Furthermore, there may be audiences affected by the exercise of authority justified via legal argumentation, but which are not intended audiences, some of which may nevertheless end up engaging in legitimation or delegitimation processes (“self-appointed audiences”).Footnote 9
In this context, Johnstone and Ratner rightly emphasize the importance of asking who can access the settings in which international legal argumentation occurs (p. 17). As they note, however, legal argumentation is not confined to exchanges between state representatives within the context of more or less institutionalized international venues (id.). Instead, it also occurs domestically via “public debates through the media, academic journals, blogs, and other organs of expert and public opinion” (id.). At the same time, international legal arguments are made and received by a variety of domestic actors, particularly as digital technologies have become increasingly embedded in day-to-day diplomatic practices.Footnote 10 These developments turn the question of access into one of technology, including what content is displayed on social media based on algorithmic selection, as well as potentially further blurring the line between personalized, emotional appeal and other forms of argumentation and legitimization.Footnote 11 Future research that builds on Talking International Law could thus further explore how, why, and when legal argumentation reaches different types of audiences, how the form and content of (legal and other) arguments is shaped as a result, as well as who may be sidelined altogether, despite being potentially impacted by the decision that actors argue about.
In Search of Good Legal Arguments: Normativity and Normative Theory
A final point involves the role of normative theory in Talking International Law. In their conclusion, Johnstone and Ratner explicitly ask how far work on international legal argumentation may be relevant to normative theory, referring to theories concerned with compliance, global governance problems, power and hegemony, and exclusion (pp. 354–55). Such a contextualizing discussion is well taken, as it highlights the broader situatedness and relevance of the research agenda. At the same time, such considerations raise larger questions on how an International Law/International Relations interdisciplinary research project that seeks to provide “real-world accounts of the way that international legal argumentation actually functions in practice” (p. 18), including by bringing in practitioners’ perspectives, sits in relation to a normative (including legal) assessment of such legal arguments and the context in which they operate (id.). A large epistemological question lurks in the background: on which assumptions and truth conditions do actors decide what counts as a legal as opposed to a non-legal argument, and what constitutes a good one? When analyzing legal argumentation outside the courtroom, should one make such determinations based on empirical observations on how a specific argument is received by other actors (particularly if those standards may change across contexts and over time), or based on the legal assessment of the study's author?Footnote 12
As Johnstone and Ratner observe, answers to the question of “who decides what counts as a good argument” diverge across the volume (p. 351). This diversity of perspectives, however, might in the end be a strength, and another area for fruitful engagement across disciplinary divides. In particular, within practice theory research in International Relations, the normativity of international practices has attracted increasing attention in recent years. This activity responds to earlier calls for closer engagements with normative theory not only to trace international practices, such as those day-to-day practices involved in the drafting of UN Security Council resolutions (such as “penholding”), but also to be able to ask critically whether such practices led to normatively desirable outcomes.Footnote 13 Accounting for how legal argumentation requires or bolsters underlying rule of law values or principles of legality (e.g., Hakimi, Brunnée) are examples of how such assessments can fruitfully be undertaken. Heathcote provides yet another approach. She defines legal argumentation as encompassing not only the preambles of the Security Council resolutions she studies, but also the broader “normative universe they stem from,” including “the histories of feminist organizing that come to be only partially included in the resolutions” (Heathcote, p. 87). Through such an approach, she can capture not only what is included, but also what is forgotten within such preambles. Approaches recognizing that “the ‘outside’ and ‘inside’ of institutional spaces [are] interconnected” (Heathcote, p. 98) are crucial, and are where Talking International Law may reach back to ongoing debates in International Relations practice theory. After all, if overlooked, we miss the opportunity to challenge, where appropriate, the content, potential misuse, or even absence of international legal argumentation.
