Doctoral Thesis
to be awarded the degree of Doctor of Philosophy (PhD)
at the University of Graz
A Constructivist Study of Critical Junctures and
Reconstitution of Legal and Policy Norms
submitted by Abdallah Salisu
First reader: Professor Florian David Bieber
at the University/Institute/Centre: University of Graz (Karl Franzen
Universität)/Faculty of Law/Centre for Southeastern European Studies
Second Reader: Professor Mitja Žagar at the University/Institute/Centre: University of Primorska/Institute of Ethnic
Studies/Faculty of Humanities
………
Graz, June 2020
Table of Content
ABSTRACT
ACKNOWLEDGEMENTS
INTRODUCTION Background Research Problem Literatures Review: According to Research Logic The Logical and Sequential Design of the Study Point of Departure (Critical Junctures in the Life Cycle of States)
Conceptual Framework Analysis of Critical Junctures The Conceptual Paradigm Conception: Definitive versus Sensitizing Concepts Central Hypothetical Proposition Research Questions Theoretical Framework Analysis
Theorization of the Study Why Constructivism (Structure, Agency & Constitutive Norms)? Rule-Based Constructivism (Constructivism and Law)
Inference I: Theoretical Inference Constructivism and Normative Changes Constructivism in Domestic Legal and Policy Analysis Constructivism and the Contention between Path Dependence, Normative Changes and Infusion of New Ideas Normative Readjustment at Critical Junctures The Contention between Path Dependence and New Norms
Methodology: Qualitative Analysis “Comparative” Deviant Case Studies Content Analysis 2
Semi Structured Interviews Methodological Conclusion Limitations
Inference II: Empirical Inference Empirical Representation: To What Extent the Empirical Studies Represent the Theoretical Claims in the Research? Normative Changes in Disintegration: Slovenia Normative Changes in Decolonisation: Ghana Normative Transition: From Material Interests to Constitutional Rights Protection Implications in Governance and Diversity Management Epistemic Communities – Empirical Analyses Epistemic Communities: Empirical Analysis in Slovenia Epistemic Communities: Empirical Analysis in Ghana Conclusion on Epistemic Communities within the Case Studies 168
Summary and Conclusion
References
ABSTRACT
The influence of Peace of Westphalia on states’ legality provides rigid sovereignty interpretation.1
However, states fail at the least crisis of legitimacy. Adding socio-political diversity challenges, it raises questions about basing state legality and legitimacy on historical lineages.
This study claims new ideas shape legal and policy constructs, norms2 and understanding of causal mechanisms;3 that ideas and knowledge infusion at critical junctures affect constructs, norms, values and ideologies to reconstitute law and policy. The study of critical junctures and the role of actors shaping legal norms and social relationship regulation at such junctures can ensure law and policy fundaments are entrenched in ideas and knowledge rather than dependent on historical paths.
It investigates contentions between infusion of new ideas and path dependence in norms and rules creations at critical junctures. With two critical junctures of disintegration (Slovenia within the former Yugoslavia) and decolonization (Ghana, which pioneered colonial rule rejection in sub
Saharan-Africa), it examines how knowledge and ideas trickle into existing legal and policy norms and actors influencing that. It assesses norm empowerment,4 i.e. normative changes at critical junctures, their reception from international system to domestic levels, and how path dependency interacts with influx of new ideas and norms, to infer the relevance of that contention in governance. It argues that critical junctures are often investigated but little is known about the role of legal and policy norms shaping actors such as epistemic communities who play vital role of shaping new norms and values when states face crises of legitimacy.
1 Dunning, A. 1896 2 Marko, 2006; Deutsch, 1953, Gellner, 1983; Hobsbawn, 1990 3 See Checkel, 2006 4 Checkel, 1997. The process of norm ascendency from the international level, from diffusion, reception, localization to compliance. 4
ACKNOWLEDGEMENTS
This study, which emerged out of an interest in how the abstract world systemises and guides practice and the regulation of practice, has been a long journey. It started with a thesis proposal, which tried to look at how intellectual or epistemic contribution (termed in the proposal as cognitive support) drives laws and policies. In the very first year, two professors, Prof., Dr. Josef
Marko and Prof., Dr. Florian Bieber asked fundamental questions about how abstract notions shaped laws and policies before they could guide them. It became apparent that not many studies had been undertaken in that regard and that taking a step back was relevant to understand the point of departures on a new idea, new norm and new knowledge influx in laws and policies.
Besides the two wonderful Professors, I would like to thank the Faculty of Law, Centre for
Southeast European Studies, the Dean, and colleagues I discussed with, especially Dr. Phillip
Trappl and the International Office in general. I thank the University of Graz for the Slovenia
Grant.
As the guidance of the two professors progressed, I became indebted to many other equally important people. Prof., Dr. Žagar of the University of Primorska, where I did my exchange programme, provided additional support. His support was crucial for the Slovene case. His critical constructive insight into the cases, especially the Slovene context, was valuable. Renata Riebezel, a fellow student and assistant to Prof. Žagar, was extremely helpful to many visiting foreign students though she had her own work, thanks, Renata. I also owe gratitude to The Slovene
Parliament, which helped me with documents, Prof. Brinar, Dr. Maja Bucar, Prof. Milan Brlgez, and the entire FDV, the Faculty of Law, The Slovenian Archives, all the Judicial Service staff and, of course, Nina Burbach of the Ministry of Justice as well as the Mladina and the Reporter weekly
Magazine, and all the colleagues in Slovenia.
5
In Ghana, I am indebted to Dr. Atupare, who provided me with guidance and served as my mentor for the three month research time, and Prof. Yaw Benneh, both of the University of Ghana Faculty of Law, Dr. Gyampo and Professor Essuman, Dr. Vladimir Antwi Danso of LECIAD, The
Supreme Court of Ghana, Okudzeto Chambers, the Law Library at University of Ghana, Legon
Campus, the National Archives, Nubuke Foundation, The Ghana Muslim Students’ Association
(GMSA) and the Judicial Service of Ghana as well as the Institute of Economic Affairs (IEA).
From Ute Bock to Prof. Köb, and to anyone who encouraged my “always want to study” habit in
Austria and Ghana, thank you very much.
6
INTRODUCTION
Background
Most often than not, the subject matter of this study is focused on international law or International
Relations (IR), which implicitly assumes the level of analysis relates to international rather than domestic matters.5 This is because constructivists’ analyses are mostly deployed on the international level. This observation is imperative from the onset because this study is about domestic level legal and policy rearrangement at critical junctures,6 norm diffusion from the international level and reception as well as compliance at the domestic level. It is related particularly to the times in which states go through looming uncertainties, at which stage new norms and values are required to restart social relationship regulation and institutional culture. The political aspect of path dependence7 in legal and policy traditions8 and constructivism’s critique of the ‘neo-utilitarian’9 posture of the international system have been studied repeatedly on the international level.10 On the domestic level, however, there is still a lot to learn regarding constructivists’ critiques, causes, and effects of the aforementioned dynamics.
The conception of legal and policy procedures follow certain normative reasoning that guides social action and its regulation.11 Norms legitimise social action and its regulation.12 This means the debates surrounding the legality and the interests that shape states and their laws have to first establish a certain degree of social, political and legal normative legitimacy, which often takes its antecedence from international norms before ascending into domestic institutions and processes
5 See Dundorff, J.L. & Pollak, M. K., 2012 6 Also seen as times of normative rearrangements 7 David A. Paul, 2000, pp. 9 (The way “political and social sequelae” affect governing over time) 8 See Archer, M. 1982, Mahoney, Greener, 2005, Alexander, G. 2001 9 Actions in IR perceived to have maximum utility for all. See Ruggie, 1998 10 Ruggie, J. 1998; Wendt, A., 1989, 1999; Wiener, A., 1998, Onuf, N. G.,1989, 1996; Kratochvil, F., 1989 11 Known herein as social relations, the implementation of which is social relationship regulation 12 Kratochvil, F., 1989, pp., 21 (Human actions and the role of norms in them); See also Parsons (Edtr.), 1964 1
as guidelines for social regulation.13 Kratochvil opined that “while even the most promising approaches in political science are of limited help in illuminating the working of norms in domestic and international affairs, traditional conceptualization of law do not fare much better”.14 However, law’s advantage over political science here is that it is “depicted as a static system of norms or normative order, which becomes ‘legal’ through its sanctioning character”.15 The policy aspect takes its normative legitimacy and binding effects from processes of “diffusion, empowerment and compliance”.16 The practice of combining the policy aspect with law becomes the pinnacle of governance: thus institutionalisation, regulation, and administration.17
For Stoker and Chhotray, this issue falls at the crossroads of legal theory and norms of policy implementation, which they have called “governance theory”.18 Stone-Sweet, approaching it from the policy perspective, has called it “judicialisation and construction of governance”.19 The changes that occur in these norms and the conditions they impose at critical junctures, the uncertainties states face in these crises of legitimacy or even a total collapse and consequently new ideas influx, as well as actors with the necessary ‘power’ to influence their ontological and epistemic relevance, are at the core of this study.
The motivation to undertake this study stems from the gap between norms and laws, especially in the ‘non-core states’,20 and the persistence of path dependence in legal and policy traditions at the
13 Acharya, A., 2004, pp. 253 14 Kratochvil, F., 1989, pp.1-2 15 Ibid, pp. 2 16 Checkel, 1997, pp. 475 – 477. 17 Stoker G., and Chhotray, V., 2008; Cooter, R. D., 2000 18 Stoker G., and Chhotray, V., 2008, pp. 7. 19 Stone-Sweet, A., 1999, (title: Construction and Judicialization of Governance); Stoker G., and Chhotray, V., 2008 20 The core states according to Christian Reus-Smit are the traditional Western states where the modern state system originated from. See Reus-Smit, 1999a 2
expense of new ideas, all of which are lost/gained/reconstituted at critical junctures in the development of states.
Different actors play different roles at such junctures and several theories can explain the contention between path dependence and the infusion of new norms. However, the actors and theories proposed herein are very important in providing new perspectives on the subject matter.
This study does not portray critical junctures in a negative or positive light. They are simply seen as periods where states/societies go through looming uncertainties, during which ideological orientations and normative approaches hang in a balance.
These critical junctures may range from mere shocks that may not really affect the course of the existence of states to violent occurrences, which can alter the entire structure of the values, norms and interests of states. Examples of such critical junctures include invasion, dissolution (e.g. Soviet
Union and Czechoslovakia), devolution (e.g. Scotland with special powers devolved from
Westminster to Holyrood Scottish Parliament), amalgamation (e.g. Northern and Southern
Nigeria), annexation (e.g. Hitler’s 1938 annexation of Austria, also known as the "Anschluss"), unification (e.g. Socialist East and liberal democratic West Germany), separation (Sudan and
South Sudan), integration, reintegration, colonisation, incorporation, inter-state wars, armed conflicts, civil unrests, coup d'états, disintegration, decolonization, civil wars, elections, etc.. Such critical junctures always exert a certain amount of influence on the characteristics of the legal and policy fundamentals of states. The new norms and interests that states end up with after such junctures may be determined by different factors such as the type of critical junctures and the amount of influence of different groups, all of which shape the diffusion and reception of norms and the state’s politics of adaptation (norm empowerment).21
21 See Ckeckel, J., 1997 3
Such a study can be pursued with any of the critical junctures listed above but several justifications support the choice of disintegration and decolonisation in this study. These two empirical cases, as pioneering cases in two different regions in the development of the modern state system outside of its traditional conception area, are illustrative of such explorative case studies. Furthermore, the intensity of critical junctures like revolution or war rises quickly to a high climax and equally retreats quickly within a short span of time, making them ideal for material analysis of their features. Disintegration and decolonisation occur gradually, providing the needed dais to study their features from social and ideational perspectives. The cases will be studied independently because the aim is not a comparative case analysis. However, factors such as voluntary proffering to integration and involuntary submission to colonisation could reveal interesting differences and insights. The geographical distance of cases and its strategic implications within international politics, as well as endogenous and exogenous circumstances, may play various roles at such critical junctures.
Such junctures are opportunities for reassessing social and legal norms and constitutional realignment for the creation of new interests, new normative approaches and consequently new identities for the states. On the other hand, states may continue on their existing normative paths, characterised in this study by political22 and sociological23 theories of path dependency.
Path dependency is increasingly becoming a widely used concept in law,24 in sociology25 and political science26 though it was initially developed in economic history27 and in the “value of
22 Greener, I., 2005 23 Mahoney, J., 2000 24 See Hathaway, Oona A. 2003 25 See Mahoney, J., 2000 26 See Greener, I., 2005 27 See David. P., 1985 4
precedence in law”28 as well as “legal evolution”29 in general. It is differently applied from discipline to discipline. According to Greener, the first widely cited cases using the concept were arguably those of Arthur, to show how “positive feedback mechanisms”30 work: small changes in the ‘initial settings’ of particular experiments with big implications for their form and structure later on.31 Most of Arthur’s and other theorists’ works on it focus on “positive feedbacks”.32 Each discipline applies and/or approaches path dependency differently. In sociology, politics and recently legal theory, path dependence has been used with very different underpinning theoretical assumptions.33 In this study, it measures the degree to which it contends with attempts to infuse new ideas in institutional normativity at critical junctures. We analyse its resistance to the influx of new ideas in normative changes in states’ affairs.34
The most significant account of path dependence in political science is in historical institutionalism, “the central claim of which is that choices formed when an institution is being formed, or when a policy is being formulated, have a constraining effect into the future”.35 This dynamic occurs because institutions and policies have a “tendency towards inertia”36 and those paths tend to endure. Thus, “once a particular path has been forged, it requires significant efforts to divert onto another course”.37 This idea holds that history matters because patterns put in place in the early stages of institutional and policy life “effectively comes to constrain activities beyond that point”.38 They do not take the influx of knowledge and new ideas seriously. However, focusing
28 Hathaway, Oona A., 2003. Pp. 102-103 29 Hathaway, Oona A., 2003, pp. 103 30 Greener, I., 2005, pp. 64 31 Greener, I., 2005; See also Arthur, 1989, 1990, Arthur et al, 1983. 32 David, P., 2000, p. 12; see also Greener, I., 2005, pp. 64 33 See Greener, I., 2005; see also Hathaway, O., 2003 34 Greener, I., 2005 (as used by Greener in organizational behaviour and historical institutionalism in Potentials of Path Dependence in Political Studies) 35 Greener, I., 2005, pp. 62; See also Hall, P. and Taylor, C. R., 1996; Greener, I., 2015 36 Greener, I., 2005, pp. 62 37 Greener, I., 2005, pp. 62 38 Ibid, pp. 62 5
on the nuances of events that threaten the fabrics of institutions and policies, knowledge and new ideas that infiltrate them may create opportunities for addressing inertia, institutional redundancies, and new incoming social diversities.
If we imagine path dependence and the influx of new ideas in contention, the role of knowledge groups becomes vital. Haas and Adler used constructivism’s ‘agent-structure problem’ to indicate that among the overlapping topics of the debate are whether national behaviour is determined and conditioned by system-level39 factors, unit-level factors40 or some complex interplay between the two. Can “state policymakers identify national interests and behave independently of pressures from social groups they represent”?41 Can they respond consistently to opportunities to create, defend or expand their spheres of influence, to “enhance collective social and material benefits, or to promote nonmaterial values without the help of such knowledge groups”?42 These are questions that, if we look into, would help us understand serious factors that drive legal and policy changes beyond simple path dependent approaches.
The logic of path dependency portrays the role of agency, structure and the role of intervening knowledge groups as either occurring through positive feedback or reactive mechanisms of interplay between interest groups.43 For Greener and Pierson, the most important factor here is historical institutionalism, with its “most distinctive feature being an image of social causation that is based around the notion of path dependence”.44 This means an across-time use of institutions for sequential investigation of social causation of political, social and economic events.45 Path
39 The international or Global level of law and politics 40 The domestic or national level of law and politics 41 Haas, P. M., 2016. pp. 4 42 Ibid. 1992. pp. 1; See also Wendt, A., 1987 43 Mahoney, J., 2000, pp. 509 44 Greener, I., 2015, pp. 62; Pierson, P., 2000 45 Mahoney, J., 2000, pp. 509; Pierson, P., 1996 6
dependency has become, within a relatively short space of time, a widely used concept, conceptualised by many theorists in different ways.46
Attempts have been made to try to construct a framework for specifying what elements and circumstances combine to form path dependent systems, and how the systems manage to reproduce their forms. However, Goldstone holds the view that a single system does “not determine” the outcome of path dependence.47 In an attempt at a complete definition, Mahoney succeeds in unifying the conceptual attempts by the various scholars and disciplines.48 For him, "path dependence characterizes specifically those historical sequences in which contingent events set into motion institutional patterns or event chains that have deterministic properties. The identification of path dependence, therefore, involves both tracing a given outcome back to a particular set of historical events, and showing how these events are themselves contingent occurrences that cannot be explained on the basis of prior historical conditions".49 The technical use of the law, for example, relies on path dependence; in the form of “binding precedents of the law, which depends on examining cases of the past”50 to make current decisions.
Often in path dependence, the cost of infusion of new ideas [i.e. change], interdependency, common interest and the compatibility of various interests sui generis, become the only way to hold various groups together under one legal system. This is mostly by giving them some aspirational objective.51 The infusion of new ideas existed in theories before constructivists’ interpretation of law and social sciences. However, ideas played a different role that was more vested in the distribution of the benefits of structural interests rather than helping to reshape or
46 Mahoney, J., 2000, pp. 538; See also Greener, I., 2005 47 Goldstone, J., 1998, pp. 834 48 Mahoney, J., 2000; 2001 49 Mahoney, J., 2000, pp. 507-508; Muukkonen, M., July 2005 50 Hathaway, O., A. 2003, pp. 103 51 Greener, I., 2005; See also Hathaway, O. A., 2003 7
create new paths. Instead of the vertical role that history and functionalism play in path dependence for ensuring “continuity”,52 the approach herein ensures ideas horizontally cut across to challenge path dependence, addressing the same issues from social, structure and agency rather than institutional polity perspectives.53 A “path-dependent system is most likely to emerge where both structurally and culturally vested interest groups grow together and are dependent upon one another to hold power”54 and the system together. This process is integral in morphogenetic change.55 All types of path dependent systems tend to follow the same patterns of interaction with norms, and most of their challenges result from their root in historical institutionalism, and their explanations of the role of history.56
In historical institutionalism, patterns of behaviour come to resemble “punctuated equilibriums”,57 where substantial changes at critical junctures58 are simply seen as ‘policy windows’59 for institutions and policies to once again settle down onto the same path and work towards inertia.
Hall and Taylor, maintain that “path dependence models have no well-developed responses to the question of why critical junctures arise – change is effectively an exogenous feature of this model”.60
There is also the issue of compatibility of ideas with path dependence. If ideas can fit within path dependence, then what exactly is their role? What is the relationship between ideas and history; how do they contribute to continuity and resist forces of change? Path dependency, because of its
52 Greener, I., 2005, pp. 64; Schmitter, 2005 53 Schmidt, A. Vivien, 2010; Klotz, A., Lynch, C., Checkel, J., & Dunn, K., 2006 54 Greener, I. 2005, pp. 66 55 Greener, I., 2005; Archer, M., 2013 56 Greener, I., 2005, pp. 64 57 Greener, I. 2005, pp. 64 58 Collier, R. B. and Collier, D., 1991 59 Kingdon, J., 1995, pp. 166 60 Hall, P. and Taylor, C. R., 1996. pp. 942 8
inherent to history61, “attempts to locate institutions in a causal chain that gives a substantial role to the development of ideas,”62 however, not as a genuine contender to path dependence but as an auxiliary.63 This may lead to difficulties in highlighting the exact effects resulting from the role of ideas in the institutions. Using ideas in this regard leads them not to be treated in systematic and coherent ways.64 Since ideas “constitute material causes and experience of agents”,65 they “become means of ‘propping up’ the institutionalized agendas”66 without any “care to their fundamental role in change”67 when used only as an auxiliary in causal mechanisms.
Furthermore, proponents of ideas as a genuine contender to path dependency also face the danger of perhaps completely writing off the importance of feedback mechanisms. Path dependency experts “cannot agree on the limits of characterizing the feedback mechanisms, fearing the loss of the distinctiveness of path dependence as a concept”.68 Further loss of importance may reduce the use of path dependence “to a mere metaphor rather than as a clearly defined framework for analysis”.69 As a theory that explains potentially problematic long-term outcomes, which deliberately de-centralises agency by adhering to a system-logic of “self-reinforcing sequencing”70 adherent to contingent events explained through morphogenetic change,71 it is often criticised as
“lacking coherence”72 and clarity. However, Page argues that the critique may also result from misunderstanding path dependence.73
61 David, P., 2000; Mahoney, J., 2000. Pp. 507 62 Greener, I. 2005, pp. 64 63 Hall, 1993; Blyth, 1997. 64 Greener, I., 2005, pp. 65; See also Schmidt, A. Vivien, 2010 65 Wendt, A., 1999, pp. 94 66 Greener, I., 2005, pp. 64 67 Ibid, pp. 64 68 Greener, I., 2005, pp. 64; See also Arthur, 1990, Pierson, 2000 69 Greener, I., 2005, pp. 64 70 Mahoney, J., 2000, pp. 508 71 Greener, I., 2005 72 Greener, I. 2005. Pp. 64 73 Page, S. E., 2006 9
The effort to explain the morphogenetic impact in normative changes is also limited to Archer’s use of critical realism.74 It is understood in the generic meaning of critical realism as major system- altering changes that affect the entire world. It is the only change path dependency theorists accept,75 with their propositions made within the context of the assumptions of a system that self- evolves. This lack of substantive explanation of the self-evolution indicates there is a role for ideas and actors such as epistemic communities, especially at critical junctures, to influence structure and culture towards a particular direction.
How states deal with these influences in the form of contentions between new ideas and path dependence at such junctures vary. This study investigates the critical junctures of disintegration and decolonisation. These are two breakpoints where one governance form makes way for another and could also be starting points for the influx of new ideas and new norm formation as the old system transitions to a new one. As such, they provide the opportunity to analyse the departure from old norms and how new ones are formed and/or received.76
Different actors play different roles at critical junctures, but political actors tend to dominate the analyses. This study focuses on epistemic communities, knowledge and new idea transmission concepts whose influence and authority on policy is steered by expertise.77 Their role in the domestic legal and policy sphere has not been thoroughly studied, neither at critical junctures nor under normal circumstances. There are epistemic communities with competencies in all- encompassing issue areas and those in specific issue areas. Ecologists, for example, are epistemic communities who “study systems of relationships in the natural world rather than analyse biotic
74 Greener, I., 2015 75 Greener, I., 2005 76 See Cardenas, S., 2014; Collier, R. B., and Collier, D., 1991 77 Haas, P., 1992 10
parts in isolation”.78 They operate independently but work with interdependence and cooperation in uncertain environments. The transcendence of their influence on policy making and their socialisation of agents into new laws at the domestic level continues to grow.79 Dunlop researched their relationship with European Commission officials80 and Risse researched domestic political level mediation of the reception of epistemic communities.81 Craig Thomas argued that its transcendence into testing domestic level epistemic influence – though needs modification from how Haas developed – could “prove valuable”.82
This research employs constructivism – a theory that explains phenomena from meta-theoretical to empirical level – to analyse, both theoretically and empirically, the contention between new ideas and path dependency at critical moments in the affairs of states. With constructivism’s focus on the creation process of social action, it might be possible to weigh the contention between existing norms and new entering ideas. Unlike path dependence, which elaborates history and contingency, constructivism deliberates extensively on the effects of structure and agency,83 which affects any form of new beginning, social reconstruction, and action. Parsons’ social action theory trails Weber’s claim that the structure of social action is situated in the world of its day, as either
“coercive control systems as in authoritarian regimes or the voluntary curtailment of state power and the establishment of citizens’ rights in a Rechtsstaat enabling democracy”.84 Depending on the regime type, social action is a construct that either complies with or defies norms.85
78 Thomas, C. W. 1997, pp. 221 and 226 (see also author’s abstract) 79 Thomas, C. W., 1997, pp. 226 (What Ernst Haas (1990), called learning in international organisations) 80 Dunlop, C., 2000 and 2010 81 Risse, T., 1994 82 Thomas, C. W. 1997, pp. 222 83 Klotz, A., Lynch, C., Checkel, J., & Dunn, K., 2006; Wendt, A., 1987 84 Gerhardt, U., 2002, pp. 4 85 Ibid 11
Constructivism’s ability to deliver an ontological explanation of social inquiry brought many conventional theories in social science and law under serious scrutiny.86 It has broken boundaries, diversified and transcended in terms of levels of operation and discipline. It was introduced by
John Ruggie, Alexander Wendt, Nicolas Onuf and others into international politics and then used in domestic analysis by Katzenstein, Ted Hopf, Jeffrey Checkel, Craig Thomas, etc. Around the same time as in international politics, Frederich Kratochvil, Antje Wiener and Christian Reus-Smit used it to explain normative postures of law, and later, Jutta Brunee and Stephen Toope and others in international law.
The latest diversification involves Antje Wiener, Thomas Diez, J. Checkel, Thomas Risse, and others in explaining supranational governance in EU law and policy.87 It is contributing immensely to the theoretical explanation of how law and politics cohere in the EU to ease supranational governance without necessarily tampering with domestic constitutional legality.88 From a disciplinary point of view, constructivism has emerged in two strands. These are rule-based, which according to Christian Reus-Smit, looks at “the relationship between domestic social and legal norms and the identities and interests of states,”89 and politics and IR based, which often focuses on challenging the unitary focus on the state as a given fact.90 This study works with the former because it is looking into norms. Its deployment in analysing critical junctures on the domestic level becomes an innovative feature.
Before stating the problem, it is important to conclude the introduction by situating the two critical junctures - disintegration and decolonisation- in their empirical historical contexts.
86 Jones, E. and Verdun, A., 2003 87 Oreste P., Jan. 2010 88 Christiansen, T., Jorgensen, K., E., and Wiener, A., 1999; and Wiener and Diez, 2003; Pollack, M. 2005 89 Reus-Smit, C., 1999a (Quote is taken from Behravesh, M. Feb. 2011) 90 See Wendt, A., 1992 12
Integration: Pavlos Hatzopoulos noted that, “survival was a quintessential feature”91 of the
Yugoslav integration because the international environment at that time was too hostile for small states to be on their own, particularly, given the volatility of the Balkan region at the beginning of the twentieth century. The highly diverse internal religious, ethnic and regional compositions led observers to conclude it existed on an innate fragility that would not allow it to survive too long.92
Furthermore, path dependent systems are usually built on a trade-off of ceding power to a particular centre of governance to “impress upon them national development agendas”93 in exchange for economic and social benefits.94
However, the collective interest of post-WWII Yugoslavia – made up of ‘Republics’ of Serbia,
Slovenia, Bosnia and Herzegovina, Croatia, Montenegro, Macedonia, as well as the autonomous provinces of Kosovo and Vojvodina, under a federation – hinged on an asymmetric ethnonationalism95 and a communist utopian objective. Rogel claims, “Nation in a modern sense of the term was simply not preponderant”96 for Slovenes “before the end of the eighteenth century”.97 An independent state of Slovenia was regarded as “unrealistic” until later in the 19th century when Slovenes began to see themselves as a “nation”.98 Furthermore, early twentieth century states formation, which hinged on material power, “favoured large economically advanced and militarily powerful nations like France and Germany”.99 This left a ‘union of Slavic states’ like Yugoslavia the only attractive option for ‘nations’ like Slovenia.
91 Hatzopoulos, P. 2008. Pp. 63; See also Cohen, 1993 92 Cohen, L. and Warwick, P. 1983; Cohen, 1993 93 David, P., 2007, pp. 4 94 See Greener, I. 2005 95 Grgic, G., 2017 96 Rogel, C. in Benderley, J and Kraft, E. (Edtrs.), 1994, pp. 4 97 Rogel, C. in Benderley, J and Kraft, E. (Edtrs.), 1994, pp. 4 98 Ibid., pp. 3 99 Ibid., pp. 3 13
Just as the Habsburg Empire put such small nations together and at some point, proclaimed their protection as its raison d’etre,100 Yugoslavia was a kingdom of South Slav states during the inter- war period. After the Axis powers invasion of WWII, it was reconstituted in 1943 into the socialist federation.101 Socialist ideals, largely personified by Josip Broz Tito, held the state together in most of the post-WWII era. However, the economic crisis of the 1980s, their direct impact on living standards and their contribution to the fall of the “worker self-management” concept that defined the socialism became too strong for the state to survive.102 By this point, a new international norm, which will allow small states to exist, was ripe and had entered the public domain.103 Increasing ideological differences and economic hardship in the ‘periphery of the asymmetric union’104 created new dynamics and challenges for its centre,105 culminating in the critical juncture of disintegration.
Colonisation: unlike integration, started involuntarily over territories where the politics of nation- state and jurisprudence were largely either customary chieftain within larger empires or organised ethnic confederacies with smaller spheres of influence. The pre-colonial states before 1500 had functioned relatively well with those models.106 The root of modern state systems in West Africa was basically the European imperial onslaughts from the Coast. It started with the Portuguese in
1471 with indigenous resistance organised around armies of ethnic collectives. European nationhood slowly replaced the indigenous governance of African kingdoms and chieftains.
European intent and interests were to control substantial mineral deposits such as gold and
100 Rogel, C. in Benderley, J and Kraft, E. (Edtrs.), 1994, pp. 3 101 Cohen, L., 1993 102 Kraft, E.; Vodopivec, M.; Cvikl, M., In Benderley, J and Kraft, E. (Edtrs) 1994, pp. 201 103 Trbovich, A., 2008 104 Grgic, G., 2017 105 Masnak, T. in Benderley, J. and Kraft, E. (Edtrs) 1994, pp. 97 106 Curtin, P. Etal. 1995 14
diamond. Such eventualities forced the entirety of Africa into European statehood with the exception of few territories. The Danish, British, Dutch, Portuguese, Spanish, Prussians and the
Swedish, all landed there, trading in many things from knives, gold, gunpowder to slaves. Though
European assertion of political authority over the territories started decades earlier, the borders were officially agreed upon amongst the European powers at the Berlin conference of 1884 to cement ‘European state type’ administration in Africa.107
In the particular case of the Gold Coast, which came under British control, the institutionalisation of European legal norms and jurisprudence met functioning customary legal systems of ethnic confederates such as the Ashanti.108 The confluence of legal institutions, legal actors, legal structures, legal procedures and rules of society into a single legal system was as such, problematic.
The imposition of the norms and values of the colonial power trumped local ones. According to
Harvey, due to these challenges, European rule created several jurisdictions based on which aspect of the law was at play, thus, the “relations between the two systems were defined by a horizontal order whose criteria were primarily ethnic. In causes to which the parties were natives, the primary law presumptively applicable was Customary Law”.109 This effectively created a dual jurisprudence of British Common Law and Customary African Law in the colony.
Research Problem
The lifecycle of a state with respect to this study is defined as a period of relative stability from one major critical juncture to another, at which point path dependency and infusion of new ideas contend with each other. This investigation is underlined by Kratochvil's analysis of the increasingly problematic nature of law at every start of a new life cycle of a state, and of what
107 Curtin, P. D., Feierman, S., Thompson, T., and Vansina, J., 1995 108 Busia, K. A., 1968 109Harvey, W. B., 1966, pp. 12 15
changing international norms do in this regard. He gave an example of how "soft law" is often used on the international level but faces difficulties penetrating domestic legal agenda, as a norm diffusion challenge. He posited that perhaps our reliance on the unquestioned dichotomy of the international versus domestic order is to be "blamed for this continuous theoretical embarrassment".110 Supranational governance has proved the Hobbesian dichotomy of state
(domestic) versus international normative division can be challenged. The Hobbesian paradigm, which lacks a Super-Leviathan authority, has long faced challenges in normative arrangements and rearrangements and any effort to infuse new ideas in international and domestic laws.111 The logic is a question of how the “unenforceable” international law empowers the enforceable domestic law. This is where the study of norms, reconstitution of normative directions and interests of states at critical junctures and how social action is reorganised, become important to investigate.
To this effect, the complete life cycle of a state is defined as the beginning of a period of normalcy after one critical juncture to when the next uncertainty sets in to lead the state to another critical juncture.
According to Finnemore and Sikkink, domestic norms of core states largely inform the establishment of international norms. These core states domestic norms are filtered into the international system.112 Some norms may trump others, but they usually cooperate each time there is contestation between norms. When norms become established at the international level, domestic norm entrepreneurs such as activists and epistemic communities use international norms to build new values and arguments to domesticate the norms.113 Here is where congruence building between knowledge, ideas and the existing norms becomes necessary at these critical junctures.
According to Acharya, the congruence is vital in norm acceptance and localisation. “Congruence
110 Kratochvil, F., 1989, pp. 3 111 Kratochvil, F., 1989, pp. 3; See also Wiener, A., 2016 112 Finnemore, M. & Sikkink, K., 1998 113 Finnemore, M. & Sikkink, K., 1998; Wiener, A., 2016 16
building” with ideas in the process of “localisation avoids wholesale rejection and acceptance and settles any cases of normative contestation”.114
Practically, Haas contends, “over time ideas will be diffused”.115 The diffusion of ideas occurs in many (socialisation) “channels that include direct persuasion, demonstration effects, inducements and incentives”.116 Diffusion also “occurs through institutional learning as actors apply consensual knowledge to manage institutional practices. Learning occurs directly through interpersonal persuasion, communication, exchange, and reflection, leading to the recognition of causal models and effects of shared values. Leaders are socialized to accept new views and to empower their expositors”.117 Tracing the effects of ideas over the period of the two critical junctures may not only help contextualise ideational influx and their influence but also make sense of shifts in normative approaches in the international and domestic systems.
This research looks into how path dependency interacts with norms descending from the international to the domestic levels, new idea influx and the changes that ensue in terms of what new values are gained and how this reconstitutes social action and social relationship regulation in the aftermath of critical junctures. It analyses one particular type of actors and their roles in the normativity of legal and policy reconstitution.
To Kratochvil and Wendt, norms are important and not static but rather a flowing set of behavioural determinants for changing social processes. They are constituent characteristics of actors’ identity, and cannot be seen separately from any form of change which states and the international legal
114 Acharya, A. 2004; Wiener, A., 2016, pp.239 115 Haas, P., 1992, pp. 12 116 Haas, P., 2001, pp. 11582 117 Haas, P., 2001, pp. 11582; See also Haas, 2015 17
regime go through.118 Checkel calls the gradual process by which norms descend from the international to the domestic level norm empowerment.119 This empowerment process may also be affected when a state is at such a critical juncture of reconstituting its identity and is not in the position to comply with established rules. This is an important research area, yet not much has improved since Ethan Naddleman claimed it has been neglected.120
Empowerment occurs when a prescription embodied in a norm through changes in discourse and behaviour at a critical moment, first becomes a focus of domestic legal or political attention and debate.121 Empowerment at the practical level involves elite decision makers and often other societal and social actors as well as epistemic communities with shared values.122 They transfer the appropriate knowledge required for state laws and policymakers to act as ‘gatekeepers’ who ultimately control the political agenda.123
Explaining this process of empowerment from its onset can bring clarity to the often-vague discussions of the spread, transmission and diffusion of norms presented in various literatures.
Such a research sums up the conditions under which norms are infused at critical junctures where uncertainty looms and decision makers must recalculate their strategies. Their interests may change or remain the same. Thus, norm empowerment may lead to a change or retention of the path of political and legal traditions, but the aftermath of a critical juncture is never the same as before. The condition is that as "norm empowerment occurs, agents learn new values and interests through interaction with norms, and their behaviours come to be governed by the logic of
118 See Kratochvil, F., 1989; See also Wendt, 1994; 1999 119 Checkel, J., 1997 120 Naddleman, E., 1990 121 Checkel J., 1997 122 Haas, P., 1992 123 Checkel J., 1997; Haas, P., 1992 18
appropriateness”.124 The two dominant mechanisms empowering norms on the domestic level do so through elite learning dynamics and through societal pressure exerted on elites. This drive both the “non-instrumental mutual constitution”125 that lies at the heart of constructivist methods and explanations, and the “constraining” effects at the heart of rationalists’ method and explanation of norms.126
In constitutive and constraining normative effects arguments, empowerment factors such as the type of critical juncture, an area of expertise and the focus of epistemic communities may affect empowerment. Norm empowerment occurs as agents are taught new values and interests. Both require the role of knowledge communities for organising knowledge for law-making, policymaking, and state interest formation.127
The foundation of this theoretical investigation in governance comes from two sources, following the logic employed by Guzzini and Neumann. Michael Foucault’s conceptual interpretation of governance known as “governmentality”,128 characterises many aspects of contemporary global governance ideas. Guzzini and Neumann combined it with growing global polity to look into the increasing importance of ideas, knowledge, expertise and epistemic influence in global politics.129
The approach in this study is similar. Foucauldian analytics provides the basis for the theorising of governance. Constructivism and the epistemic communities’ model, both of which originated
124 Checkel, J., 2001, pp. 557; See also Risse, T., 2002 125 Checkel, 1998, pp. 326; Checkel, J., 2001, pp. 556 126 Checkel, J., 2001, pp. 556; Checkel, 1998, pp. 330 127 Checkel, J., 1997; Haas, P., 1992 128 Referred to the relationship between government and thoughts; See Guzzini, S. and Neumann, I. (Edtrs), 2012 129 Guzzini, S. and Neumann, I. (Edtrs), 2012 19
from the same analytics130 and have a strong focus on norms,131 are employed to analyse the abstract contention perceived to exist between the influx of new ideas and path dependency.132
Although Kelsen believes normativity is the same everywhere, the logic of his normativity debate provides a proper understanding of self-evolution and transitions of legal and social norms.133 This approach is employed in interrogating normative transitions in this study.
In relation to the problem in this study, the concept of epistemic communities, and how it has been modified for domestic level analysis,134 entails recognising the transcendence of the practices from global polity to architects of domestic norms, albeit how norms help select, streamline and prioritise relevant issue areas. This includes understanding how these norms help states to regain certainty, new directions and interests. Since critical junctures vary, we use qualitative analysis of particular examples to establish how new norms formation works, what role epistemic communities play in norm influx from the international level, in congruence with new ideas and the existing ones, as well as how they contend with path dependency.
To summarise the problem at hand: besides local generation, the assumption is that there exist two diffusion mechanisms of empowering norms from the international to the domestic institutionalisation and regulation level with either constitutive or constraining effects.135 It is proposed that norms at critical junctures, whether with constitutive or constraining, contend with path dependency, which treats critical junctures and changes therein as contingent within a
130 According to Dursun-Ozkanca, O., in the work “The European Union as an Actor in Security Sector Reform: Current Practices and challenges of Implementation” (2014), John Ruggie borrowed the term Episteme from Michael Foucault in his 1975 work (see page 570) into constructivism. Haas and Adler later expanded the term to create the epistemic community model. 131 See Haas, P., 1992, Ruggie, J., 1975 132 Guzzini, S. and Neumann, I. (Edtrs), 2012 133 Kelsen’s normativity debate will be used to create that ground understanding in the conceptualization 134 Thomas, C. W., 1997 135 One’s interpretation may depend on whether one is rationalist or constructivist. This argument is not relevant in the study. See Checkel, J., 1997 20
continuum in a single morphogenetic change process.136 This study emphasises the contention between incoming ideas and path dependency to change states’ normative paths. According to the logic employed herein, this plays out as a friction between path dependency and new norm formation. The research empirically investigates cases of disintegration and decolonisation with a hypothesis to try to substantiate these theoretical claims.
Literatures Review: According to Research Logic
This review focuses on providing an understanding of the structure of the research. It is a review of the main literature that influences the logic of the study and the problem at hand. There are several reasons why reviewing it in this manner is important. Firstly, it is done as an auxiliary to the problem statement and as a summary of the flux of the debate rather than a regular review of a list of literature. Secondly, it helps shed light on the varying ontological levels of analysis in the study, as well as the epistemological proposals made herein. Thirdly, its evolution aids the understanding of the central hypothesis of the study. Fourth, this literature analysis may help one understand the transcendence of the bifocal nature of the research from its theoretical to the empirical logic. Lastly, it is beneficial in helping to avoid complications.
The first level, which deals with social construction and the normativity of state law, polity, and policy disarray at critical junctures, and the contention between the influx of new ideas, new norm formation or retention of the existing normative paths, is one ontological consideration that requires a review of literature for its understanding. Here, the works of scholars of legal and social norms such as Alexander Wendt, Nick Onuf, Talcott Parsons, Hans Kelsen, Jeffery Checkel,
Frederick Kratochvil, Josef Marko, Peter Katzenstein, Martha Finnemore, Kathryn Sikkink, John
G. Ruggie and Christian Reus-Smit, dominate the investigation. An important factor here is the
136 Archer, M., 2013; Greener, I., 2005 21
understanding of the ascendency of norms from the international levels to how they penetrate into domestic affairs and become domestic norms (and made into laws) that affect social construction and relations. These also aid the ontological consideration that looks into the normative transition within the wider international system.
There are different actors involved in shaping state interests at critical junctures. Epistemic communities, their shared values and their ability to influence practical decisions are led and understood primarily through Peter Haas' 1992 ground-breaking work. Others like Emmanuel
Adler, Clair Dunlop, Jutta Brunee and Steven J. Toope look at the model on various levels. The literature on epistemic communities was selected to focus on new spheres of influence, legal normativity and policy influencing debates. The goal is to understand the introduction of new ideas, the formation of new norms and interests in the reestablishment of the rule of law and policy guidelines after critical junctures. Understanding path dependence, how path dependency theories help preserve the interests of maintaining an existing path, what challenges new ideas influx may face in their contention with path dependence is put forth according to the works of Ian Greener,
James Mahoney, Oona Hathaway, Paul David and Margaret Archer.
The literature review next considers the theorisation, conceptualisation and methodology. The chosen theory of the study is constructivism, which took over three decades of debate within IR scholarship to establish conventional acceptance of social creation of meaning and identity in states’ behaviour and relations. The role of constructivism on the domestic level has now gained an important meaning. Constructivists are interested in many questions, and a key one is the social creation of norms.137 After their debate with IR, Jutta Brunee and Steven J. Toope saw their next
137 Checkel, J., 1998 22
focus as International Law.138 Since International Law itself is norm-focused,139 it is the fascination with norm creation and evolution that has proven to be the strongest bridging point between some international legal theorists, such as Alison Duxbury, and constructivists. The debate has now moved from its second tier to a third, which is norm empowerment and compliance at the domestic level.140 The literature on this has recently evolved within the context of European integration laws and policy debates, with the likes of Thomas Diez, Knud Erik Joergensen, Antje Wiener, Thomas
Christiansen, Jeffrey Checkel, and Thomas Risse championing this course.141 Such literatures have made it possible for constructivism to analyse domestic legal theoretical problems, and they have shaped a European strand of constructivism, often for explaining European integration.142
The level of analysis that follows is not a new ontological level, but one that requires separate literature because of its epistemological importance. This level is the case study empirical investigation that seeks to back theoretical claims made in the study. The constructivist analysis of norms at the domestic level seems to befit the theoretical analyses of critical junctures. However, it is imperative to choose states, which typify the critical junctures under study. Works of scholars such as Herbert Bulmer, Donatella della Porta, Michael Keating, Robert Yin, Arend Lijphart,
Harry Eckstein and Alan Bryman, who deal in-depth with case studies, will characterise this analysis.
As will be discussed in detail in the methodology, there is a need to look at the word “comparative” in attending to the two cases. A typology epitomised by the works of Arend Lijphart and Harry
Eckstein – multiple cases in a single qualitative analysis whose objective is not to gain comparative
138Brunnee, J. and Toope, S., 2010 139 Ibid 140 See Checkel, J., 1997 141 See Wiener, A. and Diez, T., 2004 142 See Behravesh, M., Jul. 2011 23
insight – must qualify the phenomena under study. Such selections with some form of deviance in case analogy, reflects some variation of Lijphart’s categories of “theoretical, interpretive, hypothesis-generating, theory-confirming, theory-informing, hypothesis-disproving and deviant case studies”143 and Eckstein’s “categories of configurative-idiographic, disciplined-configurative, heuristic, plausibility probe, and crucial case studies”.144 These authors will typify the details of the discussion in the methodology. Deviant case studies help the focus to remain on the critical junctures and not the cases that illustrate them. However, Lijphart and Eckstein agree that some determining factors may provide a deviant case study with points of convergence.145 The works of others like Robert Yin and James Mahoney will further influence this level of the research.
The Logical and Sequential Design of the Study
The sequential logic of the study is the opposite of the logic of Talcott Parsons’ structural functionalist complex interrelation of social settings, and path dependency’s continuum of morphogenetic change. However, it acknowledges Parsons’ idea of the subjectivity of human action in his social action theory, which goes back to Weber.146 This is in line with this study’s proposition that normative rearrangements are a form of congruence of descending international and locally produced norms, in which the latter must be subjective within local knowledge, ideas and expertise. Structural functionalism, for example, sees phenomena such as critical junctures as part of a complex societal arrangement and function that promote solidarity and stability.147 Path dependency also sees all changes as part of a wider morphogenetic change.148 However, this study challenges the path dependency and structural functionalism’s continuity logic, arguing that two
143 Levy, J., 2008, pp. 3; Lijphart, A., 1971, pp. 691 – 692 144 Levy, J., 2008, pp. 3; Eckstein, H., 1975, pp. 96 - 123 145 Lijphart, A., 1971; Eckstein, H., 1975 146 Parsons, T., 1937 147 Macionis, J. J., & Gerber, L. M. 2011; Parsons, T., 1937 148 See Greener, I., 2005 24
opposing systemic explanations149 – new idea influx versus path dependence – compete at critical junctures to produce new norms.
The idea of new normative beginnings proposes that at every critical juncture, new ideas provide path dependence with a series of contentious challenges seeking to realign social, legal and political norms. Since the law is a social institution, the legal logic and theory behind it aim to describe the conditions under which that social institution becomes possible and comprehensible is driven by norms.150 From various stages of social action, what advances the establishment of the new norms and consequently rules, is the migration of the logic from the social to the legal realm.151 This study sees the dissemination of new norms and rules as occurring through ideas, knowledge, policy dissemination, and social learning; and the agents responsible for that being primarily various knowledge communities.
The study cannot be pinned to one particular discipline. It mostly uses International Relations literature and draws from sociological, political and legal theoretical understanding because such issues draw from all those disciplines. However, Kelsen argues the legal is what matters in normativity.152 It is seated in the actual theoretical analysis of what provides the regulatory power.
It can also be explained in sociological and political terms because it is far from the legal logic of a lawyer’s argument before a judge where the argument always has specific objectives to achieve.
The arguments here have rather complex rule-based systemic implications that encompass the outlook of the state.153 Kelsen suggests this ‘purity of the law’154 provides the regulatory power,
149 Capoccia, Giovanni. 2015 150 Kratochvil, F., 2014; Klabbers, J., 2014 151 Kratochvil, F., 2014 152 Bergman, G. and Zerby, L., 1945 153 Hage, J., 2015 154 Bergman, G. and Zerby, L., 1945 25
which he sees in the sovereignty of the state and presided over by International Law, which in turn gains its legitimacy and binding effects from the willingness of the collection of states.155
In line with constructivists’ logic and explanation, patterns of normative institutionalisation can be explained by the effects of structure and agency just as by contingent action in path dependency and voluntary action as in Parsons’ explanation.156 The logic is discussed within a legal and policy context, but the debate has to be seen as social scientific as well. This is because whilst the ordinary practitioner’s interest lies generally in the detailed resolution of particular doctrinal debates, the legal theoretical debate is concerned with the analysis of the general framework of concepts, ideas and assumptions within which those debates take place,157 and how those debates are shaped. Such a conception is not the conception of legal theory as ‘legal science’ because it does not deal with doctrinal issues. It is also in tune with social science and must be sharply distinguished from the particular terms of the legal problems used in practical legal argumentation.158 Unlike Kelsen’s argument on the purity of law, it recognises subjectivity and takes ideology, psychology, politics, sociology and ethics into consideration.
The theoretical logic also deals with epistemology because how knowledge is shaped informs how norms are established, whence the role of various epistemic communities begins. Constructivists address these issues in a distinctive way. For them, it is rudimentary since they see the world as a social construction and setting social action in progress is resorting to generic forms of norms and rules.159 Thus, all epistemic communities have to do is to guide these social actions in normative
155 See Hage, J., 2015, pp. 131; Paulson, S., 2013 156 Parsons, T., 1965 157 Hart in Coyle, S.; Pavlakos, G. (Edtrs.), 2005 158 See Coyle, S and Pavlakos, G. (Eds.), 2005 159 Klabbers, J., 2014 26
directions in line with states’ identity and interests. This is where the purity of the laws according to Kelsen’s interpretation is challenged.
della Porta and Keating claim the interpretation of constructivism in this regard is one that is often misunderstood, largely because constructivists were not accustomed to using conventional methodological tools.160 Nevertheless, interestingly, they are admonished to seize the middle ground to demonstrate by their commitment to the science of law and politics that they are being neither too critical nor forcing their way into the conventional methodology.161 Constructivists point out that social phenomena such as war or authority, both of which are important factors in critical junctures, are not natural kinds but completely caused by social interaction. However, their answers lean more towards meta-theoretical explanations than theoretical and practical issues – although they have implications both for our substantive theories and for the methods.
Nevertheless, in these debates, both theoretical and meta-theoretical arguments interact, and they usually cannot be settled by looking harder at the facts. Consequently, the community of practitioners plays a decisive role in determining what counts as the knowledge that guides practice and how this is inputted in gaining the public’s trust again after a critical juncture.162
These raise sensitive issues about the nature of reality and the possibility of creating warranted knowledge for social regulation (law). Here, it is important to differentiate how constructivism works from other critical theories before we can show how this research project can profit from a constructivist perspective. Constructivism raises meta-theoretical issues: “whether things are simply given and correctly perceived by our senses (empiricism), or whether the things we perceive are rather the product of our conceptualisations (constructivism)”.163 The conceptual logic
160See della Porta, D. and Keating, M., (Edtrs) 2008 161 della Porta, D. and Keating, M., (Edtrs), 2008; Adler, E., 1997. Pp. 319 162 Knorr-Cetina, K. and Cicourel, A. V. (Edtrs.), 1981, pp. 149 163 Kratochwil, F. in Della Porta, D. and Keating, M., 2008, pp. 80 - 81 27
of this research is attributed to the latter, but the hypothesis has to be empirically tested to ascertain how that happens.
Point of Departure (Critical Junctures in the Life Cycle of States)
Large-scale political changes, caused mostly by exogenous shocks to the system, may be due to economic, social, and political factors, or a combination, at which point states are exposed to new norms through new ideas and a new body of information. This argument is drawn from the “notion of complex learning rooted in cognitive and social psychology”164 in which the exposure of entities to new values and body of information dictates new normative directions and hence “new preferences, change in identities and interests”.165 At such points of uncertainty, needs arise, which require new norms to shape new interests and force through new agendas, or to some extent, continue on the existing path.
Several different factors, from external invasion, operational, structural, functional, social, institutional, or personal ambitions of individuals can lead to such challenges, culminating into any of the critical moments outlined in the introduction. Therefore, they be opportunities for consolidating new normative approaches or completely changing the direction of state interests with new ideas and knowledge. However, often attention has not been given to this abstract theoretical, yet important aspect of governance. It is possible that the lack of attention to changes in norms and their roles could lead to a disconnect between norms and empirical dispositions.166
These may lead to irreconcilable social challenges, and sometimes disengagement and apathy
164 Checkel, J.,1997; Checkel, J., 2001, pp. 559, 561; see also Checkel, 1999; See also Finnemoe, 1996 165 Checkel, J., 2001, pp. 559, 561; see also Checkel, 1999 166 Nadelmann, E., 1990 28
towards law and politics, especially in states lying geographically further away from the core state jurisdiction.167
Conventional approaches see critical junctures in a negative light, but this study sees them as times of uncertainties where normative approaches are simply in disarray. Though the study is case- based, critical junctures could be seen as dependent variables, where several independent variables, in a complex network of contentious interactions, determine the new shape of the state. Critical junctures are regarded as the beginning of deliberations on social action: thus, on the type, shape and direction of the cognitive reasoning of the intellectual, ideological and normative values with which the state will operate. The theoretical explanation takes root in what Strang and Soule called
“contagion and influence”,168 a process that for this study starts at the times of uncertainty in the life cycle of states. Scholars do not often pay attention to such periods of uncertainty and the beginning of norm empowerment, contagion and normative influence, as well as the new ideas that may come up at such points. Some scholars build on the research of John Mayer – who explored the long-term effects of normative diffusion of institutional structures and how they constitute the state, society and the individual – while ignoring near term (urgent) diffusion and empowerment processes at such times as when uncertainty looms.169 Many scholars confine the work of constructivists on the effect of norms exclusively to the context of normal compliance terms, leaving contingent aspects such as politics of adaptation at critical junctures and the initiation of norm empowerment.170
Parsons, Weber and others who touched on the construction and commencement of social action on the domestic level after times of uncertainties but did so at a time the influence of international
167 Baker, B., 2000 168 Strang D. and Soule, S., 1998, pp. 268 169 Meyer, John, et al. 1987; Checkel, J., 1997 170 Kessler, O., 2016 29
norms and laws were marginal.171 Current theoretical explanations, therefore, cover a broadened influence of the international system and exogenous actors on social construction and norm empowerment. New multidisciplinary theoretical examinations like this one may break with the positivist traditions that characterise the political account of critical junctures and introduce critical perspectives. According to Parsons, it is rooted in one of Weber’s important methodological criteria, Wertbeziehung, which addresses the relevance of value, and value, in turn, is the precursor for norms at critical junctures.172
171 See for example, Parsons, T. 1965; Theory of Social and Economic Organizations by Max Weber, 1947 Edition by Talcott Parsons. 172 Parsons, T., 1965 30
Conceptual Framework Analysis of Critical Junctures
Understanding the conception of this study requires first building a framework for the analysis.
This framework is simply the international system within which states seek to legitimise their positions, and frame and justify their actions. Within this system, there are standards for the measurement of behaviours; thus, norms as well as rules that guide and govern these behaviours.
All this help to understand the concept of critical junctures because they are large-scale occurrences, which simply mean the absence of these norms and rules. The reconstruction of social action, social regulation, the ascendancy of norms and putting laws in place to guide a particular political system that may emerge, and the re-institutionalisation of the system in the aftermath of the critical juncture, are all accounted for in critical junctures as a concept. In this case, critical junctures become “constructs”, dependent variables at which several independent variables such as existing norms, knowledge, ideas, agency, structure, etc. interact to create new norms and the new normal.
With Kelsen’s normativity theory and Foucauldian governmentality, this concept can be theorised anew. Its framework reveals abstract challenges that exist at critical junctures where large-scale changes may occur.173 Drawing from Haas’ studies on the role of epistemic communities and
Archer, Greener and Mahoney’s studies of path dependence and the impact of morphogenetic social theory, one reason for critical junctures is that institutions do not continually monitor their surroundings and re-evaluate prior choices,174 whence they are forced, largely by exogenous circumstances, to critical junctures where a need to re-evaluate norms, values and interests becomes necessary. Therefore, at critical junctures, what Haas called “elasticity of demand for
173 Hogan, John. 2006; Capoccia, Giovanni. 2015 174 Haas, P., 1992, Greener, I., 2005, Archer, M., 2013 31
advice”,175 on what the state’s new normative direction will be, becomes imperative.176 A careful examination of Weber and Parsons shows this is where the causal functions of society are set in motion.177
The framework; thus, the international system and the rules and norms, and a variety of actors playing different roles give a clear picture of the concept of how these interactions take place at such junctures. From here on, one can theorise this concept with particular disciplines. They may be approached through legal, sociological, political or even interdisciplinary forms of analysis. For example, if viewed from a legal theoretical perspective, the central theoretical analyses reveal analytical insights into the nature of rules, norms or laws that guide the actions of both states and individuals.178 Some of these are discussed in the theorization section. However, first we have to set up a conceptual paradigm to establish whether a rigid or sensitising conceptualization179 will fit the study before engaging in the theoretical debate.
The Conceptual Paradigm
The paradigm is characterised by how we resort to norms at particular times. “In pursuing our goals, we are likely to interfere with each other. We demand, warn, criticise, assert, appoint, promise, forbid, grade, ride, apologise, authorise, contract, bet or even pressure”.180 There are thousands of such words.181 Their functions regarding norms are analysed through “speech-act” theory.182 However, what is speech-act theory is and how does it help us understand this paradigm
175 Haas, P., 1992, pp. 34 176Haas, P., 1992, pp. 34 177 See Parsons, T., 1937; Webber, M., 1947 Edition by Parsons, T. 178 Coyle, S.; Pavlakos, G. (Edtrs.), 2005 179 Bryman, A., 2004, pp. 271, 543-544 180 Kratochvil, F., 1989, pp. 7 181 Kratochvil, F., 1989, pp. 7, 26, 92 182 Ibid., pp. 7, 29, 265 32
and its logic better. We recognise in the types of actions outlined above that they represent a peculiar kind seeking to advance common interest. Norms are formed to advance such common interests; thus, are independent variables whose changes affect dependent variables, which in this particular case is the critical junctures when social uncertainties occur. These words are imperative in social regulation and policymaking.183
While a word like “driving” stands for an action, its function does not compare to “contracting” or
“promising,” in that driving is an action that takes place independent of any reference made to it by an utterance. Therefore, when we bet, claim or promise we do not refer to action but rather render the action with those words themselves. A second important point, which gives meaning to this paradigm, is that the latter sets of words have a normative component. There is a normative shift that is clearly recognised when we authorise, appoint, forbid or grade. Such actions would not make sense if we do not refer to certain rules and norms. When we contract, forbid or appoint we have to refer to rules that govern the contract, and these rules, which are according to certain norms, may change at critical junctures. Only with rules and norms of practice do such words or utterances mean that one is committed. “In other words, rules and norms constitute a practice within which certain acts or utterances count as something”.184 In practice, it is only by recognising such conceptual shifts as critical junctures that social and societal action and diversity can properly factor into law, policymaking and practices.
In path dependence, actions are contingent in an on-going process and in structural functionalism where contentions with norms of the past and the influx of new ideas are all part of a complex web of social interaction. However, the paradigm in which this analysis is undertaken emerges with a
183 Capoccia, Giovanni. 2015 184 Kratochvil, F., 1989. pp. 7; See also O’Loughlin, A., 2014, pp. 64 and 65 33
clear separation of the two, with an attempt to measure how much new ideas affect constitutional legitimacy beyond the critical junctures.
The logic of this study does not emphasise function, interdependence, consensus, equilibrium or evolutionary change as the case may be in path dependency, structural functionalist and Marxist approaches to social structure. The paradigmatic logic of the analysis does not reside completely in either a Weberian185 or a Durkheim interpretation. However, because of the closeness of
Durkheim’s treatment of social fact to the constructivist concept of socialisation, Durkheim’s argument of rules as social facts seems to fit well with the precepts and principles of this logic.
According to Kratochvil, these rules, born from social and legal norms, are means for constraining individual actors and such constraints secure a functioning society by giving precedence to social or societal rather than individual interests and actions.186
Constructivism’s recognition of the “subjective” nature of social facts often leads to placing it in the postmodernist paradigm.187 However, it has been proven to be conventional scientific in many ways: from challenging fundamental IR188 underpinnings to explaining governance at the EU level.189 These eventually place constructivism in ‘conventional’ theory190 paradigm. As Paulson helps us understand Hans Kelsen’s pure theory of law, constructivism helps us understand critical junctures as concepts for interrogating norms from the basic Grundnorm level.191 It also helps us understand how the Grundnorm adapts in different jurisdictions.192
185 His treatment of social action stratification 186 Kratochvil, F., 1989, pp. 95-98 187 Krasner, S. D., 1982 188 See Wendt, A., 1992 189 Wiener, A., 2004 190 della Porta D., and Keating, M., 2008 191 Paulson, S., 1992; Paulson, S., 2013; Hage, J., 2015, pp. 131 192 See Harris J. W. 1971 34
Conception: Definitive versus Sensitizing Concepts
Based on the conceptual logic discussed above, the activities that take place at critical junctures are a meaningful summary of certain aspects of social measurement of our world and therefore qualify to be analysed as a concept. Critical junctures as new ‘constructs’ become points when certain ways in which we see and do things change, hence analysing them must follow standards and laid down rules in social research. However, della Porta and Michael Keating point out there are no "right ways to do analysis";193 in that both variable and case-driven researches of prior conceptualisation and theorisation are not physical objects and therefore depend strictly on what outcome is expected. If we are “interested in general parsimonious explanations of what causes what, isolating the variables and examining their effects across cases is a better approach”.194
However, “if we are interested in context and in the complexity of outcomes, then whole cases may yield more insight. Thus, one approach may explain part of the outcome in a large number of cases, while another may explain most of the outcome in a small number of cases”.195
The goal of every social research is to discover similarities, differences, patterns and trends of an existing or a new phenomenon. Herbert Blumer’s conceptual and methodological categorisation befits the conceptual proceeding of this study. In what he called definitive versus sensitising concepts, the former involves using fixed specific procedures for identifying a set of phenomena, while the latter uses a general sense of reference and guidance in approaching empirical instances.
However, while “definitive concepts provide prescriptions of what to see, sensitizing concepts merely suggest directions along which to look”.196 Blumer acknowledged that vagueness in
193 della Porta, D. and Keating M., 2008, pp. 21 194 Ibid, pp. 21 195 Ibid, pp. 21-22 196 Bowen, Glenn., 2005; Blumer, H., 1969, pp. 148; Flemmen, B. A., 2017, pp. 80; see also Bryman, A., 2004, pp. 271 35
sensitising concepts is a problem. However, he denied that this could be solved in the social sciences by developing ‘definitive’ or fixed concepts.197
Blumer argues that concepts in social research are essentially sensitizing and that the search for definitive concepts is misplaced,198 and Bryman said some researchers may be “disdainful of approaches that impose predetermined formats” on an inquiry.199 Therefore, this study employs a sensitizing concept as it is at the crossroads of social sciences and legal studies. Adopting a definitive conception may leave some issues untouched. A conceptualisation does not have to follow a rigid pattern if it has to accommodate a multidisciplinary and transcending logic. As the cases are of deviant nature, a rigid conceptualisation may provide unnecessary challenges.200
Furthermore, the proposed role of epistemic communities is a new area of inquiry we are yet to explore, prove and interpret. Besides that, definitive concepts are typical of quantitative methods, sensitising conception grant interpretive qualitative analyses better latent and manifest interpretations than a definitive conception.201 This study also progresses through the use and elaboration of the variables.202
The critique of Blumer’s conception – of either being too general, in which case it may be difficult for a researcher to gain a useful starting point; or too narrow, in which case a researcher faces rigidity difficulties as associated with definitive conception – is avoided by frequently revisiting the conception to gain a balance and avoid either of the two challenges.203
197 Blumer, H., 1969, pp. 148. see also Bryman, A., 2004, pp. 271 198 Blumer, H., 1954; See also Given, L. (Edtr) 2008 199 Bryman, A., 2004, pp. 282 200 See Bryman, A., 2004. Pp. 271 201 Yin, R. 2011, pp. 264 202 See Bryman, A., 2004, pp. 271 203 Bryman, A., 2004, pp. 284 36
Central Hypothetical Proposition
The hypothesis is a case-based one that reflects scenarios possible for all states. It proposes that endogenous and/or exogenous circumstances at certain critical times may change the directions of the ideological and normative interests of states. These states may require the infusion of new ideas for the creation of new normative directions and interests in their legal and political systems. While this research agrees that the nuances of critical junctures may show some form of change, some states may remain on the paths of the existing political system after particular critical junctures and others may be forced by those circumstances to accept a complete change in normative directions. Many different actors may play different roles at such junctures, but the influence of knowledge groups such as epistemic communities can induce new ideas, which in congruence with locally generated and internationally descending norms, affect the conception, formulation of state interests and the evolution of legal and policy norms for social relationship regulation as well as for initiating new policy acumen such as managing emerging diversities. Thus, this hypothesis concerns breakpoints in the life cycle of states, where it proposes a contention takes place, in direct juxtaposition to the continuity path dependency espouses.
The hypothesis is based on the assumption that abstract characteristics of the state such as norms and rules do change, just like any consolidated material changes we see at critical junctures. This means that the sources of influence deciding the outcomes of critical junctures and the directions of new behavioural norms are important. According to Kratochvil, behavioural norms may emerge through “spontaneous generation” or “explicit procedures”.204 The former is mostly generated internally, and the latter derived from the international system, through either implicit contagion
204 Kratochvil, F., 1989, pp. 69 37
or explicit implementation. Among other factors, Reus-Smit adds that geographic position and culture do influence norm formation and normative stance of states.205
However, if we look at Diane Tussie, Peter Gourevitch and William Easterly’s works, we see that outside epistemic influence affects the internal norm generation. Easterly’s The Tyranny of Experts exemplifies how often the normative existence of states in Africa is dependent on outside expertise and ideas.206 Tussie and Gourevitch in particular, differ from Kratochvil on one of the two sources of norm generation. Where Kratochvil focuses on spontaneous generation, Tussie and Gourevitch think ideas that flow into behavioural norms may come from circumstantial and historically contingent remnants of structures of the past – an argument that gives weight to continuity and path dependence. Both sides, however, agree on norm generation through international multilateral activities and influences.207
Knowledge and expertise play fundamental roles as drivers of new ideas.208 Therefore, the hypothesis applies to both core and the non-core states. While non-core states may need the introduction of new ideas for state building purposes in the aftermath of critical junctures, core states may require new knowledge and ideas for issues like management of diversity. However, what is important for the context of this study is the role of knowledge and ideas in determining norms and conditions that guide social action at critical junctures.
Tussie asserts that “to some scholars, ideas operate at a normative level as constraints to the choices available to actors and to others they operate at the cognitive level by providing new information in uncertain environments, with rational choice approaches to modelling ideas widely preferring
205 Reus-Smit, C., 1999a 206 Gourevitch, P., 2005; Easterly, W., 2014; Tussie, D., 2009 207 Tussie, D., 2009 208 Gouveritch, P., 2005, Tussie, D., 2009 38
the former. These models treat ideas the same way as institutions that influence choice by constraining the options available to decision makers”.209 However, she admits that recent works on ideas as focal points incorporate elements of both approaches.210 The fusion of both has led to the role of cognitive support to be defined as the constraint for policy choices inducing unique equilibriums at critical junctures and in many uncertain environments.211 According to Tussie,
Gourevitch argues that ideas drive the transition from written norms to implementation as the principal guidance for empirical action.212 Similarly, Avila posits that, “norms are neither texts nor sets of texts, but the meaning construed from the systemic interpretation of normative texts”.213
Avila’s argument supports Klotz and Thomas’ empirical example of how global normative change in mere language changed the foreign policy of US and other western countries to delegitimise
Apartheid South Africa.214 Similar to Ghana, the South Africa case emphasises how activism influences the work of epistemic communities “to achieve and consolidate new basic behavioural norms and social understandings”.215 The works of Mastnak and Kuzmanic indicate similar trends of epistemic influence in the Slovenia case.216
Detailed attention to the mechanisms of normative rearrangements entrenched in modern governance approaches show that regional political cultures, diversity trends, structure, agency, and environmental circumstances propose different directions for different states and regions. A debate on whether regional norms are needed, or international normative standards should be collapsed into universal norms has been going on for decades now.217 Wollman thinks the core
209 Tussie, D., 2009, pp. 6 210 Tussie, D., 2009 211 Braun D., and Busch, A., 1999; Goldstein J., and Keohane, R., 1993 212 Tussie, D., 2009 213 Avila, H., 2001, pp. 5 214 Klotz, A., 1995; Thomas, 2001 215 Finnemore, M., and Sikkink, K., 2001. pp. 400 216 Mastnak, T. and Kuzmanic, T. in T; in Benderley, J and Kraft, E. 1994; Petrovic, P. interviewed 16th July 2014 217 See Schreuer, C., 1995 39
competence of epistemic communities is shaping such norms and helping to regulate any conflict of interest.218
Research Questions
The hypothesis is broken here into research questions to examine and ascertain or refute claims made herein.
1. To what degree can there be changes in norms; and to which extent is continuity ensured
at critical junctures, despite significant ruptures?
The above question examines the contention between path dependency and the influx of new norms as new ideas are introduced.
2. When, and how much a state retains its existing path of norms in its political, legal and
social affairs as opposed to how much new ideas may be injected into its affairs for new
directions of values and interests?
This question examines, on the one hand, the degree of change that may occur, and on the other, how much of the existing norms may be retained.
3. Can knowledge groups such as epistemic communities impact the choices made at the
critical junctures by introducing new ideas into the conception, formulation and the
evolution of legal and policy norms for social relationship regulation and managing
emerging diversities?
In critiquing the work of Haas, Dunlop suggests that Toke finds nothing unique in Haas’ work on the nature of epistemic communities’ knowledge and the manner in which it is created.219 Dunlop
218 Wollman, H., 2012 219 Dunlop, C., 2000; Toke, D., 1999 40
and Toke think Haas’ view of the concept is too positivistic in its reliance on the idea of an objective worldview. This critique stems from Haas’ own development of simple ‘positivist’ criteria for the model.220 In an effort to answer the above research questions, we may be able to find a critical connotation of the work of epistemic communities to diffuse Toke’s critique.
Theoretical Framework Analysis
The theoretical framework analysis relates to the philosophical basis on which this research takes place and forms the basis for linking the theoretical and practical components of the hypothesis.
The theoretical idea under investigation here is whether sets of values and norms that guide the regulatory and policy framework for social life diverge from the traditional paths they depend upon at particular critical junctures and, if they do, to what extent does this occur? This can be considered a “middle-range” theorisation as per Bryman’s categorisation.221
Critical in the theoretical analysis is also disciplines such as law, sociology and political science, which provide this study with “grand theories”222 under which it can be pursued. For instance, it is grounded in Kelsen’s normativity in law and Foucault’s governmentality in political science and sociology. Mertens argues this theoretical framing has implications on "every decision made in the research process”.223 Underlining the disciplines here is very important because theoretical inquiries aim to increase our knowledge of a particular field, and in this research, the interdisciplinary nature requires us distinguishing between the various theoretical possibilities that may emerge. These also help to form the link between the conceptual, theoretical and practical components of the investigation being undertaken.224
220 Adler, E., and Haas, P., 1992, pp. 375–387 221 Bryman, A., 2004, pp. 6 222 Bryman, A., 2004, pp. 6 223 Mertens, D., 1998, pp. 3-4 224 Mertens, D., 1998, pp.3 41
The theoretical framework discloses the methodology, theoretical perspective (the underlying philosophical assumption about the researcher’s view of the human world and the social life within that world) and epistemology (the philosophical basis, nature and limits of human knowledge) underpinning this research.225 The “methodology relates to the strategy, plan of action, and design process underpinning the choice and methods used, and linking the choice and use of the methods to the desired outcomes”.226 Since it is a constructivist study, it is imperative to look at these philosophical questions because systemic theories of international politics conceptualise structure in different ways. One is the extent to which structure is material or social and the other is about the relationship of the structure to agents, where the agency debate may be located. In both cases, norms play important roles.227
The theorisation of this study and the methodological approach are mutually integral and connected to each other. This is because first; normative deliberations are theoretical and abstractive in nature and do not necessarily require empirical evidence for their understanding.
Secondly, constructivism allows the methodological approach to be applied both on theoretical and empirical levels.228 The knowledge that drives the introduction of new ideas, their conception and their impact on the formulation and evolution of legal and policy norms for social relationship regulation, as well as for managing emerging diversities, comes from epistemic communities whose close affiliation with theory and practice provides value-changing arguments within proper contexts. It is within this context that laws and policies, thus the “product of social processes
225 Crotty, M., 1998, pp. 3; Saunders, Mark & Lewis, P. & Thornhill, A. 2009 226 Crotty, M., 1998, pp.3 227 Wendt, 1987 228 della Porta D. and Keating, M., 2008 42
which determine society's common interest, which organize the making and application of the law” are crafted.229
It is important to follow a theoretical approach that supports methodological holism as opposed to individualism230 because of the resocialization of actors into a single society with the same direction and interest in the aftermath of the critical juncture. This is because the dispositions towards, and capacities for action within the new social structures, serve as the primary and most significant structure. However, this is not to claim that methodological individualism will not work. It is preferred when the idea being conceptualised in a study is centred on actors. Actors are the central theoretical and ontological elements in social systems when working with methodological individualism.231
229 Allott, P., 1999, pp. 31 230 della Porta D., and Keating, M., 2008 231 See della Porta D., and Keating, M., 2008 43
Theorization of the Study
To argue the cases well, it is important to look exactly at their theorising potentials. Thus, since they are critical scenarios with uncertainties, we need to “construct a typology of theorising based on a cause-and-effect explanation and contextualisation”.232 In this case, the causal explanation to make sense of events at critical junctures and contextualisation to make sense of the new socialisation patterns and the new normative approaches emerging. The new socialisation patterns and the emerging normative approaches, as assessed in the problem statement, takes from the
Foucauldian analytics and its ensuing debate in governance. Social constructivism and the epistemic communities model emerged in international politics from the Foucauldian analysis of the theoretical aspect of governance (thus in the 1970s).233 On the aspect of making sense of events at critical junctures, Kelsen’s normativity theory reassesses new norms generation, as well as existing norms and their similarity with new ideas.
Different aspects of several typologies of qualitative research in this study distinguish four methods of theorising. The first is interpretive sense-making. This involves both latent and manifest meanings we can draw from interpretations of the study. The second is the contextualised explanation or seeking to establish the boundaries: thus, seeking the boundaries and contexts within which to situate qualitative studies. The third is about the reasoning patterns with which validity is established. This is achieved through either deductive theory building or inductive affirmation of theory for analysing the generality of the situation. The last category is natural descriptiveness or experimentation, which works to determine or ascertain the features and processes of the qualitative object or phenomenon under study. Though one can argue the first and
232 Welch, C., Piekkari, R., Plakoyiannaki, E. and Paavilainen-Mantymaki, E., 2011, pp. 741 233 Smirnova, M. Y. and Yachin S. Y., 2015; Haas, P., 1992; Guzzini, S. and Neumann, I., [Edtrs.], 2012 44
fourth aspects are inherently part of the second and third respectively, it may be important to separate all four theorising typologies since the study is working with a sensitising concept.234
The theorisation model simply implies that infusion of new norms, changes in normative expressions and consequent implications for changes in ideological lineage are at the core of how we construct our social settings. Thus, 'why we do what we do' and 'how we regulate what we do'; is explained mostly either through [ontological individualism and/or altruistic] rational choice approaches or moral interests.235 However, both are still characterised by a positivist type infusion of new knowledge.236 This study provides a critical perspective in view of the fact that it deals with uncertain conditions.
Constructivism comes in with constitutive learning, to present a deeper understanding of the crisis of legitimacy and critical junctures as well as the role of epistemic communities because it is not confined to one ideological lineage. This makes for a complex theorisation pattern, which is why many constructivist theorists do not agree on Wendt’s simple articulation of theoretical interpretation. Behravesh writes that the “concession of theoretical ground and employment of positivist methods to theorize in constructivism as Wendt does, has come under attack by interpretive, and in a different sense unit-level, constructivists”.237 Kratochvil, who is an interpretive constructivist theorist, chiefly led this criticism. According to Behravesh, Kratochvil contended in a challenging article on Wendt’s “radical compromises” that Wendt’s theoretical
“magnum opus” runs “into heavy weather despite his tranquil exposition of the explosive issues
234 Bryman, A., 2004, pp. 5-11; Blumer, H., 1969, pp. 149 - 152 235 Vasilachis de Gialdino, Irene, 2009; della Porta and Keating, M., 2008 236 Adler E., and Haas, P., 1992; della Porta and Keating, M., 2008 237 Behravesh, M., Feb. 2011 45
involved”.238 This critique is significant in order not to turn this positivism into a “new orthodoxy” in constructivist theorisation.239
Interdisciplinary possibilities exist in the theorisation of the research as well because the logic transcends from social and political to the legal sphere. This is where it sometimes becomes problematic because of the tendency for the “accounts of the nature of legal theory to be expressed in the shape of methodological observations, which concerns the form of theoretical inquiries into law”.240 Such legal inquiries neglect normativity and how laws gain legality seeing those aspects as social science rather than law. This in Kelsen’s opinion should not matter. For him a legal system exists if it is effective and it should not depend on moral or social norms.241 Methodological questions laden with how social and political norms, theories and empiricism take legal shape “are rather far removed from the kind of questions that traditionally motivate and occupy a typical legal philosopher”.242 Any theoretical insights supplied by jurisprudential investigation become interpretive and tend to be ultimately action-guiding within the perimeters of established laws but not prior to or during norm stratification.243
While Kelsen categorically denies any social logic and theoretical precedence to legal logic and theorises on grounds of purity, Jonathan Gorman offers a rather different view of ‘scientific neutrality’ in law.244 “Gorman’s interests transcend the question of the relationship of theory to practice”.245 However, he “views ‘reason’ as an internal and external standard by which law and
238 Behravesh, M. Feb. 2011 239 Ibid 240 Hart in Coyle, S., and Pavlakos, G., (Edtrs.), 2005, pp. 2 241 Raz, J., 1979 242 Hart in Coyle, S. and Pavlakos, G. (Edtrs.), 2005, pp. 2 243 Ibid, pp. 6 244 Gorman, J., in Sean Coyle and George Pavlakos (Edtrs.), 2005, pp. 6 - 7 245 Ibid., pp. 7 46
legal reasoning are measured”246 and he also explores the conditions by virtue of which theoretical inquiries into law are intelligible.247 Under such conditions, it becomes difficult for the insights supplied by theoretical perspectives on the law to be ‘objectively true’, or only based on subjective beliefs and contingent practices can they be considered as ‘true’.248 However, while this practice is prevalent, the likes of “Pavlakos and Rodriguez-Blanco seek to reveal the metaphysical commitments of conceptual analysis and not its relationship to reason,”249 an avenue where the role of knowledge groups become relevant.
Rodriguez-Blanco begins by contrasting methodological disputes with substantive questions of what law is. Pavlakos asks “whether legal theory should address internal (‘participant’) or external perspectives, and whether it aims to give a descriptive or an evaluative account of law”.250
Rodriguez-Blanco states that, as a result, “the majority of consciously methodological studies adopt the methodology of the social sciences, and these pairings are a consequence of that adoption”.251 She concludes that such conceptual analyses depend upon metaphysical and moral convictions.252
The theoretical deliberation in this study requires a meta-theory that can offer explanations for both legal and social scientific arguments, especially norm stratification ones. Constructivist epistemology was considered for this study because it could evaluate things both at theoretical and meta-theoretical levels. The use of constructivism is justified since norms are deliberated upon at the meta-theoretical level. It provides a critical platform for scrutinising both legal and political
246 Sean Coyle and George Pavlakos (Edtrs.), 2005, pp. 7 247 Sean Coyle and George Pavlakos (Edtrs.), 2005, pp. 7 248 Gorman, J., in Sean Coyle and George Pavlakos (Edtrs.), 2005, pp. 6 and 7 249 Rodriguez-Blanco, in Sean Coyle and George Pavlakos (Edtrs), 2005, pp. 8 250 Ibid, pp. 8 251 Ibid, pp. 8 252 Ibid, pp. 80 47
arguments. It has been tested on multi-disciplinary grounds, and draws heavily from social theory, a source it shares with the law in the attempt to establish norms.253
Why Constructivism (Structure, Agency & Constitutive Norms)
Constructivists' understanding of norms is a collective one, which makes behavioural claims on actors, and these collective understandings take the form of normative structures combining with actions of agents to inform good or bad actions within the international system.254 This form of understanding of norms is a rejection of a dualistic ontological existence of agent and structure in favour of their mutually constitutive fundamental account of international politics.255 The latter makes sense for constructivists because of their interpretation of the construction of the world via shared ideas and interests, in which a collective belief in norms is important.256 They posit a meta- theoretical and theoretical understanding of the international system with a distinct ability to function as a method of inquiry in social sciences257 and International Law.258 As new beginnings, critical junctures have to deal with human agency and the existing structure. Agency and contingency play various roles to produce a distribution of the enactment of social roles and rules, and constructivists have dealt with the problem of structure and agency in international politics.259
This is the beginning of where the contention could be measured. Social norms and rules have causal and conditioning potentialities but are not necessarily deterministic.260 Unlike in structural functionalist, Marxist and other critical theories, constructivism addresses the structure and agency
253 See Ronen, P., 2000 254 Checkel, J., 1998, pp. 327-32; Hopf, Ted, 1998 255 Hopf, Ted, 1998 256 Checkel, J., 1998, pp. 327-32 257 della Porta D. and Keating, M., 2008 258 Toope S., and Brunee, J., 2012 259 Wendt, A., 1994 260 Guzzini, S., 2013; Kurki, Milja, 2008, pp. 223 48
question. Moreover, it is the only IR theory that focuses on the role of ideas, norms, knowledge and culture, stressing in particular the role of collectively held or “inter-subjective” ideas and understandings of social life, which is key in such interpretive studies.
Several factors justify the use of constructivism in this study. First, constructivism is receptive to socialisation and social regulation (law) the same way as it is to social institutionalisation (politics), hence allowing a clear dichotomy of two strands of constructivism in this study: rule-based and socio-political-based. Second, constructivism functions like a theoretical critique unattached to ideology. Third, it is relatively new in domestic normative inquiries and therefore offers this study the opportunity to be innovative. As pointed out earlier, all strands of its definitions hold firm the idea of agency, the role of structure and the constitutive effects of norms. Constructivism’s ability to function as a tool (or method) for analysing other approaches and theories was used by Wiener and Diez261 and Christiansen et al. to explain the complex interwoven relationship of neofunctionalism and intergovernmentalism in governance relations between the EU and domestic
European institutions.262
The empirical aim of the study of contributing to the fundamental debate that underpins the influx of new ideas in changing norms in rules, law and policy making is like the introduction of constructivism into the EU empirical analysis. In other words, to critique and open crucial aspects of processes such as supra-national "polity formation through rules and norms, the transformation of identities, the role of ideas and the uses of language, for systematic inquiry”.263 Other theoretical reflections tend to have materialist emphases, which do not match with normative inquiries.
261 Wiener, A., and Diez, T., 2004 262 Christiansen, T., Jorgensen, K., E., and Wiener, A., 1999 263 Ibid, pp. 1 (see abstract too) 49
Constructivism fits with normative inquiries because its interpretations of the structure of political systems are along the lines of social facts rather than related to brute or material facts.264
For some constructivists - Kratochvil, for example - both political science approaches and the legal interrogation of norms have their shortcomings. They either depict law as a static system of norms or as a normative order, which becomes legal through its sanctioning character after the process of learning and socialisation.265 Kelsen only stresses the importance of an authoritative hierarchy, but it becomes an important adjoining factor to social norms in constructivists' assessment. Thus, law, whether as a static system of norms or as a normative order, needs to be an imposed or self-imposed authority to be justified in normative expression and be able to properly regulate and support policies.266
Both rule and social science constructivism adherents treated international issues before venturing into domestic ones. Milan Brglez, a proponent of constructivism267asserted that from a Kratochvil point of view, rule-based constructivism and normativity inquiries are the same on international and domestic levels. Nevertheless, the social sciences and IR interpretations show a clear international to domestic reasoning dichotomy.268 Therefore, re-socialisation and new norms formation at critical junctures have the ability to spread concurrently domestically and internationally, but the prevailing belief is that the international empowers domestic debate.269
264 Onuf, N., 1989; 2013 265 Kratochvil, F., 1989 266 Kelsen, H., 1949 267 Brglez, M., 2001 268 See Toope, S., 2000 269 Brglez, M. and Brinar, I., Interviewed 16th and 18th July 2014, Ljubljana 50
Checkel assessed that as students of regime and norms pay more attention to the domestic level, normative inquiries at that level becomes a debate between liberals and constructivists.270 The way the two sides “engage states is contributing to the understanding of how international norms descend to affect domestic legal and policy norm formation”.271 Checkel developed the scope and conditions that "predict when norms will have the constraining or constitutive effects favoured, respectively, by liberals and constructivists".272 He differentiated “between compliance with norms and the diffusion mechanisms that empower them on the domestic level, and explained the variance in norms with institutional arguments that capture key dynamics”.273 His argument was illustrated by considering the domestic impact of norms embedded in the European human rights regime.274 However, in analysing breakpoints on the domestic level, constructivists seem to have a better explanation than do liberals. This is because agency, which is vested in ideas than contingent remnants of institutions, becomes more important than history at critical junctures.
Rule-Based Constructivism (Constructivism and Law)
In this section, we try to identify the different “ideas of law” that are at play in the constructivist treatments of the subject, their conceptualisation, and how they serve as alternatives for the treatment of legal issues in the international system. It is important to mention here that constructivist researchers such as Milja Kurki and Adriana Sinclair argue that the constructivist treatments of law are often inadequate and lack in-depth treatment of the relations law has with prevailing phenomena such capitalism.275 Nevertheless, this must be attributed to the core of
270 Krasner, S. D., 1982 271 Checkel, J., 1997, (Quoted from author’s abstract); See also Florini, A. 1996 272 Checkel, J., 1997, pp. 473 273 Ibid. pp. 473 274 Checkel, J., 1997 275 Kurki, M. & Sinclair, A. 2010 51
constructivism’s meta-theoretical foundations rather than to its lack of strong engagement with jurisprudence from its initial stages.
There are several images of law that are present in the constructivist picture of law.276 Kurki and
Sinclair demand that for the treatments of international law in constructivism, it should be able to demonstrate a “more adequate analysis of world politics, a deeply and broadly contextualized, ontologically holistic”277 approach, and “should advance a more explicit political conception of international law as it has done for IR”.278 Most constructivists do not accept international law as an epiphenomenon as most “isms” in IR do. They reject that notion,279 taking the law as a serious variable in political analysis to try to uncover why certain legal norms are accepted and others are not,280 and what distinguishes legal norms from other norms.281 Through the works of Stephen
Toope and Juttah Brunnee, they arrived at the opposite of IR claims: that international politics is shaped through the rhetoric of International Law. Toope assumed that common meanings “serve to promote a greater coalescence of values, which can help in the evolution of more far-reaching rules of International Law”.282
Kurki and Sinclair proposed three images of law as characterising most constructivists’ interpretation of the law, with the first being the most prominent: thus, the image of law as the main idea that defines ‘legitimacy’ or ‘morality’. With this, law functions as the “final stage of the evolution of a normative consensus,”283 ordering the emergent norms. As part of this first image of law, constructivists stress that in law, common values and rules are passed on, socialised in, and
276 Brunnee, Jutta & Toope, Stephen. 2012 277 Ibid, pp.11 278 Ibid, pp.11 279 Reus-Smit, 2004, pp. 21 280 Price, R. and Reus-Smit C., 1998 281 Kratochvil, F., 1989 282 Toope, S., 2000, pp. 97–98; Kurki, M. & Sinclair, A., 2010. 283 Kurki, M. & Sinclair, A. 2010, pp. 11 52
complied with to varying degrees. The second image of law, which mostly informs its analyses, is that law as rules lies outside of political and moral debate and is only introduced for “limited and instrumental reasons”.284 The third image emphasises the “linguistic and rhetorical aspects of law”.285 Constructivists’ focus on norms and rules inform all these images of law and “hinder the development of more social structural understandings of law that would put emphasis on structured forms of hierarchy embedded in law”.286 This legal hierarchy is what allows one norm to be accepted whereas another is not.287
The social structural form and context of law sets the parameters for normative development and shapes its evolution. For Kelsen, the law is, therefore “seen as the final stage of normative evolution, and thus implicitly categorizing all laws by default as moral and legitimate, simply by virtue of their existence as law”.288 On the other hand, Kratochvil’s position, backed by Moravcsik, shows that law is positioned instrumentally by actors seeking to further their cause, which is part of the second image of law analysed above.289
Constructivism does not really care about the social and historical origins of law, the deeper
‘implicit’ or covert workings of the law or the wider social structural context of law. It simply
“points to how sets of rules and norms direct human action. Therefore, what matters is that law defines certain norms and rules that influence the way actors act or do not act”.290 Law “provides clear intelligible rules and norms against which agents’” actions are controlled. “Understanding
284 Ibid, pp. 12 285 Ibid, pp. 12 286 Kurki, M. & Sinclair, A., 2010, pp. 12 287 Kratochvil, F., 1989 (In the empirical research, we see how words matter; how they influence legitimacy. This is found in a debate in the Slovenia case where in competing interpretations of the UN charter, one article is preferred another.) 288 Kelsen, H., 1967, pp. 171 289 Moravcsik, A., 2005; Kratochvil, F., 1989 290 Kurki, M. & Sinclair, A., 2010, pp.14 53
law in such a way is attractive to constructivists because of their primary concern with the role of rules and norms and their social construction";291 in which case law is just an influential normative social construction.292
By Kratochvil's assertion, constructivists underrate the complexity of the relationship between law and power293 or do not see the effectiveness of power as lying solely in the laws’ sanctioning effects. They see it as merely an influential set of rules and norms. However, their analysis of it is completely emotional. Therefore, the implication of the assertion that actions which are illegal, may be legitimate, and that this is enough to justify those actions, is substantial. This "highlights the power of certain actors in the system in defining legitimacy and legality as well as the flexibility, and indeterminacy of law. If the law is indeterminate, or flexible enough to be influenced by powerful states (which it undeniably is, being disproportionately created, controlled and administered by them), hierarchical questions in social structural relations become relevant”.294 Kurki and Sinclair note, "Unfortunately this nod to the dark side of structural power and legal indeterminacy is rarely challenged, and failure to challenge this is a problem".295
Constructivists are aware of the law’s lack of mutual construction character; they reject its self- depiction as apolitical and see it as simply historical rules, but fail to systematically challenge it and problematize these things in practice.
Parts of the description of the third image of the law discussed above reflect almost entirely in the work of Kratochwil. This is touted as one of the most important constructivist theorisations of law.
Kratochwil argues the law is best understood as a particular reasoning style,296 which is
291 Ibid, pp. 13 292 Kurki, M. & Sinclair, A., 2010, pp. 13 293 Kratochvil, F., 1989 294 Kurki, M. & Sinclair, A., 2010, pp. 14 295 Ibid, pp. 14 296 Kratochwil, F., 1989, p. 214; Kurki, M. & Sinclair, A., 2010 54
‘fundamentally rhetorical in character’.297 In addition to being rhetorical in an Aristotelian sense, the legal argument is in a sense a struggle between infusion of new ideas and the existing set of laws. It also has ‘path dependent’ characteristics due to its "sequential pleadings and rebuttals".298
Moreover, “in a naïve vision of law, focus is placed on legal prescriptions, which in actuality, are
“the tip of the iceberg”. 299 We need to understand that “specific regulations rest upon a wide variety of normative structures. Law reaches ‘down’ into far greater depth by informing societal norms”.300 Here, we can see that Kratochwil frames law in relation to its social context but by defining law as a style of reasoning, the wider social structural and normative framework is ignored. He prefers to place analytical emphasis on the structure of reasoning as the key to understanding why certain decisions are made. This produces a very abstract picture of law where social context is really only the background against which legal reasoning occurs, rather than possessing much (or any) causal agency. If we should take one of Kratochwil’s examples, it will serve to demonstrate his focus on rhetoric and language, which in comparison to this research we find a focus on social context.301
Constructivists do not pay attention to significant differences that exist within the legal realm such as the differences between “formal equality and the reality of legal hierarchy".302 Although many constructivists are aware of simple examples of legal hierarchy such as the restricted membership of the UN Security Council, little analytical significance is attached to this since these hierarchies are based on political merits such as dominant norms versus weaker ones, which is criticised by
297 Kratochwil, F., 1989, p. 210; Kurki, M. & Sinclair, A., 2010 298 Kurki, M. & Sinclair, A., 2010, pp. 15 299 Kratochwil, F., 1989, pp. 251. 300 Ibid, pp. 251 301 Kurki, M. & Sinclair, A., 2010 302 Kratochvil, F., 1989, pp. 75 55
constructivists like Kratochvil.303 Formal equality remains one aspect of law left for constructivists to consider. So far, the technical nature of the explanation of formal equality from its Aristotelian origin304 and constructivists’ concern with mutual constitution, structure and social contexts, seem divergent.305 This implies that the relevance of such technical details may not count for them. If constructivists should accept the notion of formal equality, then “law is inevitably a construction dependent upon the mutual generative activity and acceptance of the governing and governed”.306
This “underestimates the extent to which law ‘is’ a function of power".307
Kurki and Sinclair further explain that this equality is primarily just a formality, and any idea of law’s mutual construction is a social "myth", “which cannot be challenged by the de- contextualised, non-structural understanding of law”.308 However, the reality remains that powerful states will differentiate and empower themselves vis-à-vis the majority of states; and doing it through law and legal hierarchy will remain important, even when rights are regionalised and decentralised.309 This will affect norms and policies accordingly.
Reus-Smit proposes a mutual constitution character between international politics and international law,310 which makes law an active complicit in the political hierarchy.311 This makes it easy for powerful actors who are structurally well placed within world relations to manipulate the law. Law “is a human institution; it did not fall, unbidden, from the sky, but developed over time and through a series of thousands upon thousands of decisions made by individuals at specific
303 Ibid 304 Aristotle, 3 Ethica Nicomachea, Ackrill, J. L. and Urmson J. O. (Edtrs.), 1980 305 Checkel, J., 1999 306 Brunne J.,́ and Toope, S., 2000, pp. 48 307 Ibid, pp. 48 308 Kurki, M. & Sinclair, A., 2010, pp. 18 309 Ibid 310 Reus-Smit, C., 1999b 311 Kurki, M. & Sinclair, A., 2010 56
times and places"312 in a continuum of building and improving social relationships. This is a fact we all share with the constructivists. However, law could be more because it may give rise to
“social and material relations between agents and is deeply reflective of and constitutive of other social structures",313 within which policies are implemented. This also means law is severely political: inseparable from political aims, yet entirely tied to them. The “people who made the law were generally men and the general principles of law, which have shaped international law, were created in the West,”314 which according to Ikenberry, developed through the growth and expansion of the liberal core of the modern state,315 “and was then exported to the rest of the world.
These principles were not neutral or universal: they reflected or were shaped to reflect the interests of the powerful, white men and capitalist centres”.316
Due to the same legal hierarchies, and political systems they are akin to, most legal conceptions concentrate on the basic ideas of obligation (duty) and permission, which are based on two logics of deontic notions. These are the state of affair (sein sollen) and state of action (tun sollen).
However, the conditions and premises that guide the logic are often not discussed and that is where it becomes contentious for constructivists.317 Social contentions such as Parsons’ propositions are rendered as not making legal sense and therefore keep the argument within the deontic logical domain. This also affects policies and keeps them within political domains.
Rule-based constructivism is born out of interpretive constructivism, a subjective insider account that focuses consistently on the reflections, motivations, and actions of the state actors themselves
312 Kurki, M. & Sinclair, A., pp. 17 313 Ibid, pp. 18 314 Ibid, pp. 18 315 Ikenberry, J., 2011. pp, 345 316 Kurki, M. & Sinclair, A., 2010, pp. 18 317 Sartor, G., 2006 57
in their practice.318 It is often called linguistic or dialogical analysis, which is modelled after a linguistic conception of social action and interaction capable of explaining constructivists’ key arguments. It assumes the existence of constitutive social rules and rational agents constructing those social rules through speech-act theory.319 Beside speech-act theory, an important factor, which constructivism starkly focuses on, is social facts.320 For example, things like money, sovereignty, and rights, which have no material reality but exist only because people collectively attach a particular value to them and accept and believe in their value as well as act with those values accordingly, strengthen the normativity and normative acceptance of rule of law as well as political traditions.321
Koivisto posits that rule-based constructivism focuses on conceptualising the “international” as a framework through which state practice and accounts of the practice becomes possible.322 This subjective construct account of state normative capacity focuses on individuals acting on states’ behalf. It provides an ‘internalist’ account of state action, whose method suggests that social action is comprehensible in interpreting the meaning state actors attach to their action. It “draws from the
Wittgensteinian language game”,323 much in the same way as speech-act does,324 highlighting how social action can occur only where rules are followed”.325
The normative capacity of statehood, according to Kratochvil, must be specified with reference to the meaning and purpose of the interstate framework of rules and norms.326 He argues, “Human
318 Koivisto, M., 2012, pp. 35 319 Kratochwil, F., 1989, pp. 11 320 Searle, J., 1995 321 Finnemore, M., & Sikkink, K., 2001 322 Koivisto, M., 2012, pp. 36 323 Koivisto, M., 2012, pp. 33 324 Kratochwil, F., 1989, pp. 7, 29, 265 325 Koivisto, M., 2012, pp. 33 326 Kratochwil, F., 1989 58
action is rule-governed… (and) it becomes understandable against the background of the norms embodied in conventions and rules, which give meaning to action”.327 Constructivists’ analysis of governance is similar to “deliberative democracy”.328 This applies in this regard chiefly because of how governance is re-theorised and norms, values and state interests are re-evaluated at critical junctures.
327 Kratochwil, F., 1989, pp. 11 328 See Mouffe, C., Dec. 2000. “Their main idea is that in a democratic polity, political decisions should be reached through a process of deliberation among free and equal citizens”. See also Checkel, J., 2006 59
The Inference I: Theoretical Inference
As we have been investigating social and legal norms, how they break with traditions and how they re-form with the help of knowledge and ideas, there is one thing alluded to in the hypothesis explanation that we need to bear in mind. This is Avila’s claim that “norms are neither texts nor sets of texts, but the meaning construed from the systemic interpretation of normative texts”.329 In this theoretical inference, we seek to understand such interpretation on both the domestic and international levels from a constructivist perspective since the aftermath of WWII. Thus, in both normal and in uncertain times in the life of states. The first thing to understand from this is that sometimes the intentions behind the interpretations are not achieved. Friedrich Müller said:
„Norm- und besonders Verfassungstexte setzt man, mit unaufrichtigem Vorverständnis
konzipiert, letztlich nicht ungestraft. Sie können zurückschlagen“330
Translation
“Normative texts, particularly constitutions, can be established with sincere intentions. But
ultimately, this is not done with impunity”
Bearing in mind that this is how written texts become law and support policy implementation, we start the inference with what we learned in terms of the structure of social set-ups and agents within them – how they configure the basis for law and policy making. What we know is that dominant approaches in law take social construction for granted and what we see here is how that happens.
What this research reveals in this regard is that it is not because dominant theories of legal and political analysis cannot explain social construction projects. It is rather those that are not based on immediate and obvious self-interests – “such as promoting human rights for people far away or
329Avila, H., 2001 330 Müller, F., 1997 (In Brunkhorst, 2014) 60
saving whales and dolphins” 331 – that are difficult for the dominant theories to explain. We also determine that theories that dwell in the understanding and explanation of norms explain social construction better than they explain structural configurations.332 This is one of the major reasons why there has always been an open space for a constructivist alternative explanation.
The dominant approaches of IR that constructivism challenged in its early years, most often explain the international system from pragmatic economic and social approaches because they tend to understand the system only from material interests perspectives.333 The dominance of material interpretations thus, suppresses the proper understanding of Weber's notion of Verstehen, built in symbolic interpretationism and phenomenology, which is important in norm creation.
However, the main reason why interpretationism and phenomenology are compatible with constructivists’ ideas on rules is that agency and ideas bolster interpretationism and phenomenology more than do the material and historical approaches.
Tracing the roots of the problems, our findings are backed by an important claim by Kratochvil, which was addressed in the problem statement. His observation that reliance on the “domestic and international dichotomy” and anarchical portrayal of the international creates “theoretical embarrassments”.334 This may be due to Kelsen’s proposition that a legal system should focus on legal norms only.335 We observe that the disregard for social norms, and then “making social order dependent on law and law dependent on institutions, create a largely negative understanding of the international system. Hence, cementing challenges when they bind legal norms of central
331 Finnemore M., and Sikkink, K., 2001, pp. 403 332 Checkel, J., 2008 333 See Finnemore, M. and Sikkink, K., 2001.The Waltz versus Wendt Debate on the anarchical state of the international system is one of the longest debates in the IR circles. 334 Kratochvil, F., 1989, pp. 2 335 Kelsen, H., 1967 61
institutions of sovereign will”,336 is deemed important. What further complicates the issue is that the conceptual link between law, order and these special institutions remain largely unexamined, creating difficulties in the fluency of normative reconstitution, realignment, and the influx of new ideas at critical junctures. Indeed, Gyampo in the Ghana case and Bucar in the Slovenia case both pointed to inconsistencies in normative underpinnings and the resulting legal systems that align with the issues Kratochvil addresses.337
Kratochvil continued to demonstrate that correcting this theoretical embarrassment requires the reconstitution of norms and infusion of new ideas but this cannot be easily done because political path dependence thrives on the embarrassment resulting from this normative practice. This makes critical junctures important. The differential placing of the onus of proof from the past favours certain views while others must fight for credence. Path dependency thrives on this because those it favours dictate a certain path of history. Those denied credence must use “creative means” while those it favours “are so to speak, credible from the start,”338 which shows alternative approaches within the same norms cannot free people from this model. What we need is “to get over the presumption of the unique conceivability of the embedded pictures”.339 Instead of living with the implicit explanation of things, we should try to understand “how they have come to be and how they came to embed certain views of things”.340
In collecting data, two distinct theories emerged. One is the normativity and legitimisation of the existence of culture-based constitutional identity in the case of Slovenia and Ghana, where normativity was solely pushed by human agency because of structural antagonism towards local
336 Kratochvil, F., 1989, pp. 2 337 Bucar, M., interviewed 23 July 2014, Ljubljana; Gyampo, R. Interview 3rd November 2014, Accra; Kratochvil, F., 1989, pp. 2-3 338 Kratochvil, F., 1989, pp. 2-3 (See also Charles Tylor, Philosophy and History) 339 Kratochvil, F., 1989, pp. 3 (See also Charles Tylor, Philosophy and History) 340 Ibid 62
constitutional identity formation. The continuation on the same structure in post decolonisation speaks for a pseudo transition from custom to contract, as both Kelsen and Kratochvil will presume. The state constitutional identity becomes situated in conflicting dual legality, putting together two sources of law that cannot integrate into each other.341 Slovenia reflects the idea of theoretical building of normative restructuring while Ghana reflects what Wendt calls political interest and material factors outmuscling ideas and social facts.342 In both cases, self-determination and sovereignty based on individual liberty were re-theorised to achieve important strides. This called for the kind of oscillation between testing proposed theories, emerging theories, and collecting data – a rigorous approach needed for the multiple transcending theoretical and conceptual categories.343
The relevance of assessing changes in behavioural norms and their congruence with new ideas at critical junctures to create new normative grounds for legitimacy, legality and governance, must be viewed as relevant as the idea of a need to rebuild declined material institutions at critical junctures. Since social facts such as norms and values deteriorate at critical junctures just as material ones do, the findings of this theoretical investigation become part of the inherent theoretical belief in the constructivist argument that changes in the nature of social interaction between actors leads to fundamental changes in other areas of social life.
It has been proven to the most sceptical of constructivists’ audiences – the realists in security studies – that norms matter. International arms treaties to military culture, humanitarianism and identity politics, these were all used to demonstrate how social structures of different kinds reshape actors’ interests, self-understanding and behaviour.344 It is in this regard, relevant to theorise the
341 See Apter, E., 1963 342 Wendt, A., 1999 343Silverman, D., 1993 344 Katzenstein, P., 1996a; See also Finnemore, K., 1996 63
connection between norm empowerment – in particular, the normativity of law – with constructivists’ empirical research. Constructivists made strong cases to produce well-documented empirical studies showing both the effects and effectiveness of norms in matters that prior to constructivism, were limited to the interests of powerful states.345 Such interests included foreign aid, opposition to slavery, piracy and trafficking in women to science policy, defence policy, development of racism, laws of war, etc.346
Understanding the processes by which norms originate and change is a big part of most constructivist research programmes – both theoretical and empirical. As in this research, framing a broader theoretical background and research design on these questions requires one to supplement constructivism’s minimalist social-theoretic claims with a variety of more specific and often more substantive theories such as normativity of law, Foucauldian analytics, speech-act theory, the mutual constitution process and the behaviour that results from them.347 Broadening the scope of the debate with cases from outside the core-states realm is important considering the core state’s ability to resist critical junctures. According to Koivisto, the resilience of Nordic states' social democratic welfare traditions, for example, prevent such critical junctures from happening in core states' realm and therefore are not the best examples for analysing new beginnings and their effects.348
Before we proceed, it is important to revisit the generational argument of the age of material versus the age of ideas in this study. There is no doubt that there has been a shift in normative approaches in the international system - but how do we quantify and measure this shift and its effects? It is
345 Katzenstein, P., 1996a; See also Finnemore, K., 1996 346 Nadelman, E., 1990; Finnemore M., 1993, 1996; Klotz A., 1995 347 Finnemore M., and Sikkink, K., 2001 348 Koivisto, M., 2012 64
"acknowledged that material forces constrain and enable social forms at the margin",349 using the distribution of interests as a primary source and constituent factor. This creates reliance in IR scholarship on power and interest only as material. Therefore, the only way to challenge legal norms and theories, which emphasise them, is to show that factors like ideas, norms or institutions explain a lot of behaviour. Power, however, is still important in rights-based norms but constituted more by ideas than material objects. This means there is a need for the juxtaposition of power with ideational and social interpretations just as has been the case with power in material interpretations.
We know for sure that norms and changes in them affect all political actors from congressional decision makers in the United States to supranational actors in the EU to governments of developing countries.350 Similar to actors, the manner in which norms have their effects is diverse.
In some cases, they shame or pressure agents to succumb to certain ideas or rules, in other cases, some learn from them and internalise the norms.351 To understand the effect of norms on agents and their behaviour, we evoke two contesting cognitive models, a rational form of means-end logic calculations, which are altered by norms and how they govern actors by forcing them to recalculate their behaviour and see how best to achieve their interests. Others take different cognitive dynamics, one where “agent behaviour is rule-governed”, with the logic of appropriateness replacing strategic and instrumental calculations; thus, constituting the actors' identities and interests.352
The first thing the cognitive models reveal in this theoretical inference is that decolonisation and disintegration have traits like most types of critical junctures in their respective geographical regions. Colonisation is the main operational mode by which modern states were formed in most
349 Wendt, A., 1999, pp. 114 350 Moravcick, 2005; Cortell, A., & Davis, J. 1996; Checkel, J., 1997; Finmore, M., 1993; Klotz, A., 1995 351 Campbell, E. 1964; Checkel, J., 2000 352 Checkel, J., 1998; 1999, pp. 1; See also Checkel, J., 2000 and Went, A., 1994 65
countries outside the core states jurisdiction, hence state formation in these regions often result from decolonisation or critical junctures like it. Similarly, the way core states, and neighbouring nations lose, and gain territory and sovereignty has often been through some form of annexation or wilful integration and disintegration like how the former Yugoslavia formed and disintegrated.
The cognitive models also reveal that while disintegration often fosters a legal path with stronger ideological changes along pre-existing or a negotiated ethnic or territorial nationhood, decolonisation imposed norms with no regards to pre-existing nationhood. Its psychological nature has stretched it beyond a critical juncture to intellectual discursive scrutiny and to the post-colonial as a social science discipline. It has evolved through a postmodernist critical theory nexus seeking to rethink and rearrange, among other issues in governance, the shattered ontological and cognitive capacity of former colonial territories. However, it has evolved through social science and not legal studies, with some scholars claiming legal theory’s leading 21st-century challenge is its inability to deal with postcolonial discourse.353
In line with the theoretical discussion on the images of law (see page 50-51), in a constructivist picture of law, the problem exists in both decolonisation and disintegration. Legal language’s inability to decolonise reveals it is largely instrumentally studied for the pursuit of pragmatic vested interests, hence its ideas remaining dependent on these paths. Lipshaw assessed that the study of law and legal epistemology tends to be fully focused on its technical efficacy to serve economic and/or certain sanctioned ends. He noted that the discipline does not spend much time debating its sources and their influences. If at all, it is often left for legal philosophers who focus mostly on its purity and reverence. Practitioners hardly deal with this aspect.354
353 See Darian-Smith, E. and Peter Fitzpatrick (Edtrs), 1999 354 Lipshaw, J., 2006 66
Generally, the legal surveys of the disintegration355 and attempts to situate constitutional identity in culture356 prove legal studies can offer space for new ideas at such critical junctures. Slovenes as an “ethnic nation” within the Habsburg Empire, as part of Yugoslavia,357 and later independent, offers a critical perspective in this regard. Ghana, as the first Sub-Saharan African state to seek independence from colonial rule in 1957, started a shift that set up legal precedence. After four coup d’états and three republics between 1966 and 1991, it returned to a fourth republican democracy in 1992. All these provide legal precedence. However, while such precedents variously found their way in Slovenian laws, they have not been able to deal with the challenges of legality in Ghana.358 Ghana became a “developmental state”359 forced to prioritise immediate basic economic issues.
These two cases provide interchanging movements along ideological lines in the latter half of the twentieth century and the impetus for tracing norm diffusion and empowerment mechanisms. The study found that ideational analysis explains adherence to the same norms with different ideological lineages better than material ones. They may allow socialist and capitalist states to ascribe in different ways to the same norms descending from the international system whereas, in material environments, they have not been able to. For example, ideas allowed the easy congruence of norms in the formation of the independent state of Slovenia. Its formation built on cultural360 and epistemic processes that included avoiding military confrontations and putting regime-critic dissidents in strategic positions of government.361
355 See Trbovic, A., 2008 356 Article 5 Slovenian constitution; Kranjc, in the 22nd July 2014 interview, made similar claims. 357 Rogel, C., in Benderley, J and Kraft, E. (Edtrs) 1994 358 Apter, Ernest, D., 1963 359 Mkandawire, Thandika, 1998; Easterly, 2014 (Both authors model their definitions around pioneers of the idea like Loriaux, M. 1999 and Johnson, C. 1982 360 Article 5 Slovenian constitution 361 E.g. Janša J. as Slovenia Defence Minister 67
The research found that the social nature of constructivism makes it suitable for the analysis of eras of normative disarray. One way to explain the delay in its relationship with law is that the works of sociological institutionalists and world polity theorists, which read clearly in IR,362 offered the causal focus needed first to fight the hegemonic interpretation of international relations and to provide meaningful contexts for an empirical explanation of their effects. Constructivists then entered the legal discourse after showing how “world culture” reconfigures state policies. To accommodate developing states policies, it had to spread into many different policy arenas363to demonstrate that "norms, culture, and other social structures have causal forces and that these structures are not simple reflections of hegemonic state interests".364 With questions surrounding the importance of its scholarship, being able to prove the causal status of social structures matter in all jurisdictions was important for constructivism.
Constructivists were quickly criticised again for the focus on causality in one direction – norms and social understandings influencing agents – with disregard to the opposite, i.e. the influence of agents on structure and social understanding.365 However, it led to the quick realisation that norms and social understandings often had different influences on different agents and on how the agents helped shape state interest, normative principles and directions. One of such prominent agents is epistemic communities, which we shall discuss next. However, explaining those different influences was identified as a crucial preoccupation of constructivism. Brglez argued that social understating, structure and agents equally affect each other. This was evident in practice in
Slovenia at the turn of events on the eve of the disintegration of Yugoslavia. Agency was
362 Finemore M., 1996 363 McNeely, L. C., 1995. pp. 17 (With Forward by John Meyers); See also Meyer & Hannan, 1979; Bergesen 1980; Thomas et al 1987; Finnemore, M., 1996; Meyer et al. 1997 364 Finnemore M., and Sikkink, K., 2001, pp. 397 365 Finemore M., and Sikkink, K., 2001; Checkel, 1997, 1998 68
characterised by a liberal democratic norm while the structure was dominated by a socialist understanding of norms.366
Epistemic Communities: Before an applied inference of actors in the empirical chapter, there is a need to analyse theoretically the epistemic and ideational influences. In accordance with
‘structural’ and ‘cultural’ path dependence according to Greener367and Gourevitch,368 law and policymaking norms and ensuing strategies are often influenced by circumstantial and historical contingencies. We find there are contingent remnants of core state norms in norms of all states, both in the core and non-core jurisdictions. Ideas need more space in law and policy making, for example, in dealing with diversity and heterogeneity. Ideas are used in uncertain environments for the formation of new institutions.369 Peter Gourevitch developed three factors that explain how that happens.370 Although his approach is more akin to policy than law, it properly dissects the factors and their contributions, especially at the domestic level. His three factors are “intellectual elites within particular disciplines (the influence of epistemic communities), the extent of external pressures from the international community (outside influence) and internal circumstances
(Historical contingencies and individual actors)”.371
The first, according to Gourevitch, involves knowledge dissemination by epistemic communities.
However, how much of it would be applied depends on how entrenched path dependency
(historical circumstances) is in the political system as well as geographical positioning in relation to core states where international norms mainly originate from. In contrast to models of the
366 Brglez and Brinar, I., Interviewed 18th July 2014, Ljubljana 367 Greener, I., 2005 368 See Tussie, D., 2009 369 Tussie, D., 2009, Tussie, D. & Saguier, M., 2011 370 Tussie, D., 2009 371 Tussie, D., 200, pp. 7; See also Braun and Busch 1999 (Eds.); Goldstein, J., and Keohane, R., 1993 (Edtrs.) 69
diffusion of new economic ideas372 in the core states, the approach in this research emphasises that, in some circumstances, external pressures need to be considered as an active force (not a mere constraint) and that even trade needs to be taken into account as a crucial diffusion mechanism.
The second policy norm driver was developed on the issue of external leverage under four banners with trade at their core. However, the influence of external factors may also be epistemic communities with leverage arising from their ability to influence policy outcomes through quicker access to research, finance, and markets than internal circumstances, as is often the case in the developmental state model.373
In Gourevitch’s literature, a problem with ideational arguments arises from the fact that the availability of ideas does not always produce change. The behaviour of institutions may become predictable to the extent that they are not affected by new ideas.374 Such “situations lead many scholars to view ideas as ‘hooks’ selectively used by political actors to further their interests.”375
While ideas can explain how they influence policy, they however, do not predict when. It may only be possible to “predict when ideas may influence policies if the interests of those who use ideas as hooks are identified”.376
In this research, ideas take a primary role. They are tools for not just delivery of policy but also for addressing state building issues and new areas such as diversity management in laws and governance. Interest in the political effects of ideas, expertise and knowledge groups always existed in IR as a direct policy method and in law as an advisory mechanism. However, with
Foucauldian Studies in Governmentality, it crossed into social construction, norm stratification
372See Koivisto, M., 2012, Generally, he thinks ideas that duel in economics have a certain persistent stubbornness in path dependency in the core states’ systems. 373 Koivisto, M., 2012; Tussie, D., 2009 374Tussie, D., 2009, pp. 8; Gourevitch, P., 2005 375 Tussie, D., 2009. Pp. 8 376 Tussie, D., 2009, pp. 8 70
and value creation.377 For constructivists, who epistemic communities helped shape their scholarship,378 knowledge, even in its technical form, “is never value-neutral and always comes with an array of shared normative understandings that makes it meaningful, therefore powerful, in social life”.379 It abutted into research and advocacy in the manner of epistemic communities in the late 1980s and early 1990s.380 Most of the works done in this area focused initially on the effects of knowledge in ways that were “compatible with utilitarian approaches (…), thus, helping utility-maximizing actors achieve their ends more effectively”.381
Concluding on ideas, knowledge and epistemic influence in the theorization of governance, we note that while such communities “deploy their knowledge, they disseminate new norms and understandings along with technical expertise”, becoming “powerful mechanisms of social construction”.382 One of the most powerful social constructions in recent international affairs was the theory of Mutually Assured Destruction (MAD), which was used to rationalise the idea that the entire international community stands to lose in case of any further use of nuclear weapons.
According to Adler, it was a strategic move that cemented the entire deterrence framework for the
West and its Russian counterpart.383
Governance theorisation – thus, a form of epistemological negotiation and manoeuvring between efforts to re-establish new norms, new ideological directions and to re-stratify values and conceptualize them into a new culture of laws and policies – becomes particularly important in times of uncertainties.384 Regardless of how this is inferenced and on which level, the normativity
377 Foucault, Michel (1991). In Graham Burchell, Colin Gordon, & Peter Miller (Eds.) 378 Finemore M., & Sikkink, K., 2001 pp. 402 379 Finemore, M., & Sikkink, K., 200, pp. 402 380 See Reus-Smit, C.; Haas 1992 381 Finemore, M., & Sikkink, K., 2001, pp. 402-403 382 Finemore, M., & Sikkink, K., 2001, pp. 402 383 Adler, 1992; Finemore, M., & Sikkink, K., 2001 384 See Stoker G., and Chhhotray, V., 2008 71
of the legal system and polity formation takes from the simplest (dyadic) to the most complex
(triadic) forms.385 Its evolution depicts how epistemic communities and other agents infuse new ideas to redefine norms and change relevant legal features such as self-determination, sovereignty, diversity, constitutional legitimacy and provisions, territorial integrity, etc., in the encounter with path dependency, from the basic level of normativity onset.
Dyads, Triads, Normative Structure386 and the Construction of Governance: It all starts with what Parsons in The Structure of Social Action called “the survival value”.387 This survival value, shaped by inherent instincts and environmental conditioning,388 is structured from the simplest to the complex interactive forms, which become political cultures,389 institutions390and governance391forms. Governance systems are constructed at critical junctures with the dyadic and triadic social exchanges and regulation. Although they can also be explained with structure and agency, rational choice or moral values, the explanation is done with a simple approach to theoretical motivation, thus, the simple principle of reciprocity and mutuality.392
The model comprises three core elements: the dyad, the triad, and the normative structure. The dyad is “the simplest”393 form of any “pattern of [direct] exchange between two individuals or groups”.394 The “dyad alone defines (…) basic human relationships with examples in all aspects
385 See Stone-Sweet, A., 1999 386 This aspect of the topic was directly borrowed from the title of the work of Stone-Sweet (1999) 387 Parsons, T., 1968, pp. 115 388 Ibid, pp. 115 389 See Eckstein, H., 1988 390See North, D., 1990 391 See Stone-Sweet, A., 1999 392 It was not discussed in the introduction because beside the fact that it is easy to understand, it is also used in explaining the normative structure, which also makes its logic clear. 393 Simmel, G., and Wolff, Kurt, H.1950, pp. 122; Stone-Sweet, A., 1999, pp. 2 (148) 394 Stone-Sweet, A., 1999, pp. 2 (148); See also Shapiro, M. & Stone Sweet, A., (2002. pp. 56 72
of social life. In marriage (…) in feudal polities (the tie between serf and vassal), in parliamentary democracies (the dichotomy of party of government and party of opposition), in industrial production (the interdependence of capital and labour), and in IR (the network of allies and enemies), dyadic structures constitute core social identities of individual entities”.395 The dyads as a basic form of social institution only binds single units together. However, “dyads alone are unstable”.396 Therefore, “they are building blocks of society that are linked in chains and clusters to form larger social formations, and they develop quite naturally within such constructs”397 into triads and further complex forms.
The “normative basis of the dyadic form is reciprocity (or mutuality). Mutuality is the glue holding the dyad (society) together, which accounts for why it exists in every human community about which we know anything”.398 Stripped to essentials, the norm holds that “people should help those who help them”,399 enforcing the logic of speech-act used in the conceptual discussion (see page
31), “promises made are to be kept; debts incurred are to be repaid; kindnesses received are to be recognised and returned. Reciprocity gives to the dyad a special consecration,”400 by linking each party to “a common fate”.401
The perception that reciprocity is crucial to the maintenance of social systems and norms enforced by morality has been a staple in social sciences.402 However, law adds its sanctioning power to compel commitment to reciprocity.403 Furthermore, neo-rational economic pragmatism does not
395 Stone-Sweet, A., 1999, pp. 2(148); Shapiro, M. & Stone Sweet, A., 2002, pp. 56 396 Ibid, pp. 4(150) 397 Stone-Sweet, A., 1999, pp. 2(148) 398 Ibid, 1999, pp. 2(148) 399 Ibid., pp. 2(148) 400 Kratochwil, F., 1989, pp. 11; Shapiro, M. & Stone Sweet, A., 2002, pp. 56 & 60 401 Stone Sweet, A., 1999, pp. 3(149); Shapiro, M. & Stone Sweet, A., 2002 402 Stone Sweet, A., 1999, pp. 3(149); Shapiro, M. & Stone Sweet, A., 2002 403 Shapiro, M. & Stone Sweet, A., 2002; Kratochwil, F., 1989 73
allow legal theory the needed theoretical deliberation. This shifts analytical priorities from normative deliberations to reward induced “strategic choice contexts within which individuals seek to maximize their utility”404 and attain material ends. “Although neo-rationalists also prefer the dyad for reasons of simplicity, they problematize reciprocity in particular and norms in general”.405
Game theory metaphors such as prisoner’s dilemma point to “difficulties of establishing and maintaining dyadic cooperation”.406 They are “inherently unstable, (…) because each party faces powerful incentives to ignore normative obligations thereby cheating on the other”.407 The influx of new ideas, on the one hand, helps expand the dyad into a triad or do it a disservice by entering as further incentives for the challenges in the dyad.
The triad, two disputants and a dispute resolver, is a universal phenomenon whose understanding is the “primal technique of organizing social authority and of governing. The underlying reason for this being the fact that the triadic entity guarantees and controls the reciprocity. Though the relationship is still rooted in the dyad, the triad brings an external presence to the dyad, a presence whose interest is in a common fate that ‘cements’ social relationships across time. Viewed functionally, Triadic Dispute Resolution (TDR) serves to perpetuate the dyad, given changes in the preferences or identities of the two parties, or changes in the environment”.408 The triadic entity also ensures transition over time, “responding to and acting as a crucial agent of social change”.409
Norm is established when the TDR in its various forms properly functions and serves the purpose for its institution. Thus, governance is understood with a proper grasp of the TDR. Moving from the dyad to the triad means constructing a form of governance - the triadic. The lack of a regulator
404 Stone Sweet, A., 1999, pp, 3(149) 405 Stone Sweet, A., 1999, pp, 3(149) 406 Stone Sweet, A., 1999, pp, 3(149) 407 Ibid, pp. 3(149) 408 Stone Sweet, A., 1999, pp, 3(149); Shapiro, M. & Stone Sweet, A., 2002, pp. 56 409 Ibid, pp. 3(149) 74
in dyads makes conflicts debilitating. However, this does not mean there is no conflict in the triad.
From a constructivist point of view, conflict is constitutive of the triad and this is why there is a dispute settler party. The “TDR is what is used in performing governmental functions – they are normative guidance/regulations of how one ought to behave, to generate and to stabilise one’s expectations about the behaviour of others, and to impose on ex-ante distributions of values and resources”.410
Social settings adhere to certain norms once a TDR is set up. “Two ideal types of TDR are relevant to this analysis. The first is consensual TDR, triads constituted by the voluntary consent of disputants, that is, by a form of an ad hoc act of delegation (…)”.411 This form of TDR recognises and bequeaths social authority in the form of structurally ingrained social hierarchical legitimacy on the third party. For example, “siblings appeal to parents, workers to bosses, and villagers to a shaman, spiritualist, a chief, or a sage. The second type is compulsory TDR, triads that are permanently constituted by jurisdiction and hinged in legality. Here dispute resolution processes that are triggered by one party to a dispute against the will of the other. In this type, the court replaces delegation”.412 This means an initial constitutional provision, which acts as a guide for the delegation, must be in place, administered by a polity and implemented by a court. Courts are
“the paradigmatic forms of compulsory TDR arbiters, but legislative bodies perform the social functions”413 of making the laws for the arbiters whose main tool of operation is the same interpretive methods constructivism also uses. Overall, the social function of the TDR (i.e. governance) “is to regulate behaviour and to maintain social cohesion as circumstances change
410Stone Sweet, A., 1999, pp. 3(149) 411 Ibid, pp. 3-4(149-150) 412 Ibid, pp. 4(150) 413 Ibid, pp. 4(150) 75
[all according to a given norm]. The final element of the model is a normative structure: the system of rules – or socially constituted constraints on behaviour – in place in any community”.414
What Stone-Sweet called normative structure is equivalent to what North calls “institutions,”415 March and Olsen have variously called it “the rules of the game,”416 arguing critical junctures as times of “institutional rediscovery”. They also call it “customs and traditions, conventions, codes of conduct, norms of behaviour, statute law, common law and contracts”.417 It is “congruent with how Eckstein conceptualises culture: mediating orientations,”418 those “general dispositions of actors to act in certain ways in sets of situations”.419
“It conforms to March and Olsen’s notion of rules: the beliefs, paradigms, codes, cultures, and knowledge that permits us to identify the normatively appropriate behaviour”.420 For Taylor, “it equates norms with ideologies and culture, and conceives of institutionalised rules and for
Jepperson it is a performance scripts”.421
Despite clear differences in how they understand structure, culturalists and (at least a few) neo- rationalists agree on far more than we might expect. For Eckstein, culture allows people to “decode experience (…) to give it meaning,” which “saves virtually all decision costs”.422 However, backgrounds and experiences influence the explanations that epistemic communities, academics and theorists offer. For North, for instance, whose explanation of institutions is delivered from a
414 Stone-Sweet, A., 1999, pp. 4(150) 415 Stone-Sweet, A., 1999, pp. 4(150) 416 Stone-Sweet, A., 1999, pp. 4(150); March J. and Olsen, J. P., 1989, pp. 3-6 417 Ibid. 418 Stone-Sweet, A., 1999, pp. 4 (150); Eckstein, H., 1988, pp. 791-792 419 Stone-Sweet, A., 1999, pp. 4(150); March J. and Olsen, J. P., 1989, pp. 79 420 Stone-Sweet, A., 1999, pp. 4(150); March J. and Olsen, J. P., 1989, pp. 22 421 Shapiro, M. & Stone Sweet, A., 2002, pp. 58; Stone-Sweet, A., 1999, pp. 4(150); Jepperson 1991, pp. 145, as quoted in Stone-Sweet, A., 1999, pp. 5(151); Taylor, M., 1989, pp. 135, as quoted in Stone-Sweet, A., 1999, pp. 5(151) 422 Eckstein, H., 1988, pp. 791-792; Stone-Sweet, A., 1999, pp. 5; Shapiro, M. & Stone Sweet, A., 2002, pp. 58 76
material pragmatic perspective, institutions “exist to reduce the uncertainties involved in human interaction,” thus saving “transaction costs”.423 For Stone-Sweet, “culture” is a subset of an institution – “a language-based conceptual framework for encoding and interpreting information.
Normative structures enable human interaction by simplifying the range of choices available to individuals and by investing those choices with a meaning”.424
Across the social sciences, change in normative structure has proven difficult to theorise in the times that critical junctures impacted world policies most – the second half of the twentieth century. Nevertheless, there were examples of diverse political cultures with which epistemic communities could guide the basis of state building.425 Stone-Sweet cautioned that it is important to “understand the logic of institutional inertia”,426 because “rules” simply “facilitate exchange between individuals to create opportunities for collective action and behaviour that responds to these opportunities, once locked in dyadic forms. This reinforces the normative structure”.427
Moving from Eckstein (1988) to Onuf (1989) and Wendt (1999), we come to realise that the structures become enforcing power acting together with agency. In constructivist terms, because normative structures constitute individual and collective identities and give meaning to human action, these structures are difficult to change with action “without a concomitant change in identities”.428 The reproductions of these human actions become inherent in organising human communities.429 This is modelled in one widespread unit called the state and used for social relations analyses. In the next subchapter, constructivism helps us trace how this has developed in the current international system.
423 North, D., 1990, pp. 6, 17, 25; Shapiro, M. & Stone Sweet, A., 2002, pp. 58, 116 424 Stone-Sweet, A., 1999, pp. 5; Eckstein, 1988 425 Examples in Eckstein, 1979; 1988; Powell & DiMaggio, 1991, chap. 1; Taylor, M., 1989; Tsebelis, 1990; Šelo Šabić, Senada, 2005 426 Stone-Sweet, A., 1999, pp. 5(151) 427 Stone-Sweet, A., 1999, pp. 5(151) 428 Ibid, pp. 5(151) 429 Stone-Sweet, A., 1999, pp. 5-6 (151-152) 77
Constructivism and Normative Changes
According to Wendt, the starting point of post-WWII scholarship for most of the theorisation on state interests has been from the perspectives of material power. To him, it is understood as a military capability and "egoistic desire for power, security or wealth",430 usually identified with a realist approach to international politics. As such, political interests legitimised social regulation, with changes in norms largely ignored. This partly explains why constitutional legitimacy and legal framework analysis seemed to have fallen behind political considerations in international and domestic norms and the making of laws. It also goes further to explain why material factors have often interested scholars more than the role of ideas in new beginnings of a state’s affairs until the arrival of the social interpretation of IR. All these help us recognise a shift from an international era in which constituent elements of shaping new interests were largely political and material to one that is largely rights and ideational norms based.431
Material forces propagate path dependence and resist new ideas because of their juxtaposition with and strenuous adjustment to history.432 In the disintegration case, we see a clear shift to reliance on ideas with a deliberate role for knowledge communities in shaping the new state interests.
Furthermore, culture becomes an important factor in garnering constitutional and political support both at the domestic and international levels. At the domestic level, it becomes a negotiating factor for new value creation and at the international level, a negotiating factor for regionalisation and localisation of norms.
430Wendt, A., 1999, pp. 92 431 See Wendt, A., 1999, pp. 92 432 David, P. 2000 78
In this study, we learn two major theoretical classifications of norms. One is the constitutive norm, which is a characteristic of identity and the other a constraining norm, which is a characteristic of learning and behaviour. Both norms and regime change students’ analyses433 come to focus on domestic constitutional legitimacy. Checkel supports this observation but contends this may create challenges for all other forms of ideas that shape the state constitution.434 Constructivists make it possible to pay more attention to social realities in the state socialisation and interest formation in the aftermath of a critical juncture, for which norms are a prerequisite. Atupare agrees norms are not static, that establishing thriving legal and policy standards requires a functioning knowledge community capable of understanding issues on the ground to help stratify them for states’ affairs.
Knowledge and expertise become tools in this regard and his opinion shows exogenous normative underpinning will always remain problematic, as we will see in the decolonisation case.435
Understanding how social facts change, and the ways they influence politics, is also a major concern of constructivist analysis. For them, identities and interests are important and seen as products of norms and therefore not taken for granted.436 Constructivism as a theory works in the normativity argument because it is about human consciousness and its role in international and national life.437 By reviving discussions that assess the role of norms at critical junctures and their constituent effects on decision-making, we not only lessen the narrowing of focus on regaining constitutional legitimacy at the domestic level. We also gain a better understanding of why actors on the international as well as the domestic arena have to resort to norms and may have to reconstitute the norms at critical junctures. Constructivism is primarily used in this context in two main ways. The first is to give an account of the domestic factors that are important for the
433 See Checkel, J., 1997 and 1998 434 Checkel, J. 1997 435 Atupare, A., Interviewed 24th October 2014, Accra 436 Finnemore, M., and Sikkink, K., 2001 437 Ruggie, J. 1998, pp. 856 79
normativity, socialisation, formation and evolution of new norms, state identity and interest.438
The second way explains how these norms are structured into rules for social relationship regulation and policy formation at the domestic level.439
The conventional theorisation follows a Hobbesian logic, which claims the laws of nature are always obliging in individuals’ conscience, but not in their conduct until institutional safeguards are provided.440 Constructivists differ on these arguments. Efforts to critique and counteract this notion, not by scrutinising it from a classical constructivist point of view but by simply
“reconstructing the original Hobbesian argument, turns out not only to have historical interests but also tremendous theoretical implications”.441 These could also result from a misinterpretation of
Hobbes. However, our present reality, through these fundamental changes, is out of tune with our models and understanding.442 In this context, material factors such as the changes in the technology of destruction must be noted, as have the changes in our idea of legitimacy, sovereignty, self- determination and governmental powers at critical junctures.
Kratochvil points out that any efforts to recover the original Hobbesian thought might not be an idle undertaking. Nevertheless, understanding the original is only the first step, albeit an indispensable one. The “second step entails going beyond the conventional conceptual divisions and their constitutive assumptions, and casting a fresh and unobstructed look at how (…) norms and rules work, i.e. what roles they play in moulding decisions”.443 For this reason, it is important
“not to prematurely select a concept of law and then decide whether the status of norms in IR
438 Cortell, A., & Davis, J. 1996 439 See Kratochvil, F.,1989, pp. 5 440 Kratochvil, F.,1989, pp. 5 441 Kratochvil, F., 1989, pp. 4 442 Kratochvil, F., 1989, pp. 4 443 Kratochvil, F., 1989, pp. 4 80
satisfies the criteria of a given concept of law”.444 This is because the concept of law itself is ambiguous and none of the original founders of “law of nations limited their investigations to narrow legal issues in international life (…). Thus, from Grotius to Vattel and Trippel, treatises on international law were always inquiries in law in general and concerned with a wide variety of historical, political and philosophical issues”.445 It is better to investigate the role of norms and rules in choice-situations in general and then later introduce distinguishing characteristics, which allows us to separate legal norms from other types of norms.446
Kratoschwil thinks “reviving this kind of philosophical inquiry is timely”447 because without understanding and connection to the theoretical source, a “lawyer-bureaucrat attached to the policy-making machinery may influence the creation of legal norms through state practice of proposing and accepting new standards and solutions, which are not negotiated through the development of conceptual frameworks in tune with international and domestic realities”.448 This is what happens in decolonisation, as we shall see. Law only proposes pragmatic standards and solutions that are not in tune with the conceptual framework of the state’s existence.449
The empirical use of constructivism in re-socialisation after critical junctures is mostly either by positivist epistemology or interpretive perspectives.450 However, they have to take both approaches in order to serve the purpose of learning and socialisation when state interests and norms change at critical junctures. While positivist epistemology provides structures for new norms, the interpretive use of constructivism plays an important role in defining (providing meaning to) new
444 Ibid., pp. 4 - 5 445 Kratochvil, F., 1989, pp. 5 446 Kratochvil, F., 1989, pp. 4-5 447 Kratochvil, F., 1989, pp. 5 448 Ibid, p. 5 - 6 449 Gyampo, R. interviewed 3rd November 2014, Accra; Atupare, A. P., interviewed 24th October 2014, Accra 450 See Behravesh, M, July 2011 81
values and scopes of new norms.451 Nonetheless, constructivists see a major nonconformity in the interpretation of how norms govern social action because positivist epistemology, which is widely used in understanding of social action “treats norms as causes”.452 Kessler sees a defect in the
“understanding of social action and of the norms governing them”, which he attributes to “a fundamental misunderstanding of the functions of language in social action and over-reliance on positivist epistemology”.453
Constructivists’ interpretation led most political, legal and policy processes to be characterised by ideas rather than measures dependent on tradition and historical and functional lineages.454 As discussed earlier, constructivism, touted as a middle ground and not a grand theory, explains normative shifts based on two assumptions. These are ‘the environment in which agents/states take action is social before it becomes material; and secondly, the fact that this setting (structure) can provide agents/states with understandings of their interests (it can ‘‘constitute’’ them and their new interests)’.455 This assertion is opposed to how the system has developed before constructivism.
Rather it developed materially, in line with path dependency, i.e. material trade-off as the motivation for contingent continuation on one path.
Constructivism has evolved from its days as a mere alternative perspective during the 1980/90s to be categorised into three different forms: “systemic,” “unit-level,” and “holistic”.456 Systemic constructivism, exemplified by the influential writings of Wendt, dwells on the international system, challenging Waltzian neorealism and concentrating on “interactions between unitary state
451 Dunlop, C., 2000 and Behravesh, M., July 17, 2011 452 Kratochvil, F., 1989, pp. 5 453 Kessler, O. July 2016, pp. 43 454 Christiansen, T., Jorgensen, K., E., and Wiener, A., 1999; Wiener, A., and Diez, T., 2003 455 Checkel 1998, pp. 325–6, as cited in: Jones E., and Verdun, A., 2003 456 Behravesh, M.: Feb. 3, 2011 82
actors and what happens between them at the expense of what happens within them”.457 This strand of constructivism is believed to have diverted attention from states’ domestic politics and its role in constructing or transforming norms, identities and interests. Unit-level constructivism on the other hand, which is well represented for example by the views of Peter Katzenstein and Jeffery
Checkel, focuses on states’ “the relationship between domestic social and legal norms, and their identities and interests”.458 Here, it transcends beyond theoretical and normative argument into empiricism’: dealing with such issues as “national security strategies”.459
Holistic constructivism, at the intersection of systemic and unit-level ones, functions as the tool for bridging the divide between the international and the domestic in explaining how state identities and interests are established. Characterised by the writings of John G. Ruggie, Christian
Reus-Smit and Friedrich Kratochwil, “holistic constructivism integrates the domestically constituted corporate identities of states and their internationally driven social identities into a unified analytical perspective that treats the domestic and the international as two faces of a single social and political order”.460 The conveyance of normative changes and stratification of legal and policy interest by epistemic communities in this regard is the role of the holistic constructivists, which is why they dwell on norms and are rule-based461 rather than the socio-political interpretation of constructivism.
The methodological approaches also differ in accordance with the focus. For example, Kratochvil and Ted Hopf pay attention largely to socialisation at critical junctures: i.e. the role of language, of linguistic constructions and of how social contracts are re-formed and people are socialised in
457 Ibid 458 Reus-Smit in Alex J. Bellamy Edtr., 2005, pp. 85; Behravesh, M.: Feb. 2011 459 Behravesh, M.: Feb. 2011; Waltz, K., 2000 460 Reus-Smit, C., 2005 in Burchill et al 2009, pp. 194-195; Behravesh, M., Feb.3, 2011 461 The Main writings of Kratochwil are all in this direction 83
them, as well as the social discourses in constructing new social reality. Their domain, according to Brglez and Behravesh, is dominated by post-positivist and interpretive discourse.462 They are not interested in explaining the causes and effects of norms and identity change through deductive research methods in the same way as are conventional constructivists. They are simply interested in the shift, exploring the conditions of possibilities for such changes and the ways changes are created in the first place, using “inductive (bottom-up)” research strategies.463This is why their methods are applicable on the domestic level, which is what we look into next.
Constructivism in Domestic Legal and Policy Analysis
Like its impact on IR, the role of constructivism in domestic law and policy and the relationship between them at critical junctures may be mainly investigated in three ways. These are the roles actors play, the process of normativity and the effect of laid systemic paths (or influence of society). The analytical similarities between constructivism and the traditional domestic legal and policy norm analysis are their common concentration on the ways in which various cognitive processes impact the reconstruction of laws and policies after any critical juncture, as well as on agency and agents.464 These agents may be states, individual elites or transnational actors.465
Constructivism’s significant role in IR led to increasing attention to the role of ideas, the influence of culture, and the significance of rules466 in understanding global interactions outside defined ideological paths. It challenged the “dogma of state-centrality and systemic anarchy”467 and established that the international system as a complex “social system with multiple layers of actors operating with mixed motivations through intervening institutions”.468 The ability to function as a
462 Brglez, M., Interviewed, 2014, Ljubljana; Behravesh, Feb. 2011 463 Behravesh, M., July 17, 2011 464 Klotz, A., Lynch, C., Checkel, J., & Dunn, K. 2006 465 Cortell, A., & Davis, J. 1996 466 Karber, P., 2000 467 Ibid, pp. 189 468 Ibid, pp. 189 84
method and a tradition that transcends various disciplines469 made domestic analysis easier for constructivism.
After its dialogue with international law in whose work normative evolution is fundamental, the evolution of constructivism470 took a domestic turn. Katzenstein outlined the role of culture, religion, and regional conditions in the domestic political realm.471 Reus-Smit saw the
“relationship between domestic social and legal norms and the identities and interests of states,”472 as a central national security issue from the onset (at critical junctures).473 For example, in this new social contextualization and analysis of sovereignty and self-determination, Slovenia had an implicit goal of avoiding belligerence. Similarly, operating on human agency under a structure configured as a tool of economic exploitation to achieve statecraft, the case of Ghana cemented legitimacy that included security. We shall learn more about this in the empirical research.
To understand the domestic working of constructivism better, we have to place holistic constructivism at the “intersection of systemic and unit-level constructivism to bridge the divide between the international and the domestic”.474 The bridging of the divide explains and negotiates how state identities and interests are constituted – this unifying analysis treats the domestic and the international ‘as two faces of a single social and political order’.475
This characterisation is particularly important for the context of local actors and state builders outside the core state jurisdiction, where the modern nation and state building ideas have not been
469 Ibid, pp. 189 470 Brunnée J., and Toope, S., 2012 471 Katzenstein, P., 1996a 472Reus-Smit in Alex J. Bellamy Edtr., 2005, pp. 85; Reus-Smit, C., 1999b 473 Katzenstein, P., 1996b 474 Behravesh, M., Feb. 2011 475 Reus-Smit, C., 2005, pp. 199; Behravesh, M., Feb. 2011; See also Kratochvil, F., 1989; Ruggie, J. 1998 85
really theorised from within.476 They become cognitive tools for overpowering institutional inertia in path dependence and breaching the gap between cognitive actors such as epistemic communities and legal and policy practitioners in those geographic settings after constructivism’s focus on building social norms through interaction and how these norms influence actors.477
Even though, “overall, too little effort has been spent on tracing the distinctions between social and legal norms”478 within constructivism, “nothing denigrates or resists such analyses.”479
Constructivism makes us understand that states are social constructions and “wilful juridical actors, with varying inter-state relations and technical capacity to formulate and enforce public policies”.480 Their moral, social and legal norms are structured in nominal dispositions and inclinations as well as in authoritative permissions and approvals. Where the approval is obtained depends on which norm is under consideration. Moral and social norms often have their basis in religious, ideological, natural and social environmental conditioning, whereas legal norms are products of political deliberation processes and balance of power.481 However, how do these norms deal with new ideas that emerge and challenge them in times of normative disarray?
Constructivism and the Contention between Path Dependence, Normative
Changes and Infusion of New Ideas
Path dependence as defined in the introduction is quantitatively applicable. Although it is non- ergodic, the dynamics and implications for the methods of social scientific, legal and economic policy analysis, and lessons obtained from it concerning public policy diffusion and compliance
476Šelo Šabić, Senada, 2005; See Gellner, E., 1983 477 Brunnée J., and Toope, S., 2012 478 Brunnée J., and Toope, S., 2012 cited from Authors’ abstract 479 Brunnée J., and Toope, S., 2012 cited from Authors’ abstract 480 Haas, P. M. 2001, pp. 11580-11581 481 Cooter, R. D., 2000 86
as well as institutional evolution can be measured.482 As structure, agency, identities, norms, interests as opposed to history, are integral in constructivist explanations of the world, the idea of critical junctures befits their outlook of things. Thus, structure, agency and constitutive effect of norms and identity become independent variables, which contend with each other in the cause of the critical junctures as the dependent variable. Here, an enactment analysis of the contention as a measurable activity can at least be tried.
Epistemic communities consider “the implications of the purpose of use of technology and the effects of social institutions”483 to address such challenges of system analysis. David argues that a positivist’ “description of what happens remains more readily within reach than measurement of causal effects and interpretive constructivist approaches because of the difficulty of specifying what a plausible alternative world would have looked like”.484 This is a major reason why epistemic communities, especially in the field of legal and economic history continue to “draw back from attempting a full-scale counterfactual analysis when they approach such tempting questions (…) as how to assess the effects of the eighteenth century codification of English common law”.485 As will be discussed with specific examples of Nordic countries under the interaction between path dependence and new norms, unless there is a clear critical juncture at which norms could change,486 possibly with an ideological turnaround, the process is a gradual positivistic adaptation with gradual normative configuration within morphogenetic impact.487
482 David, A. P., 2007 483 David, A. P., 2007, pp. 16 484 David, A. P. 2011, in Zumbansen P., & Callies, G., (Edtrs), pp. 103; (pp. 18 in earlier versions online) 485 David, A. P., 2007, pp. 16 486 See Greener, I., 2005 487Greener, I., 2005, pp. 65. A kind of “structural and cultural conditionings that influences human actors, creating certain ‘emergent properties’ and ‘situational logics’ for their interactions with the system and how these conditioning factors influence the actors within the system through their interactions with them”. 87
Normative Readjustment at Critical Junctures
Embedded in international principles and obligations, prescribed norms, driven by social action, are expected to descend into domestic politics. In Parsons' edited work on Max Weber, social action like any other form of action may be classified in four ways. (1) In terms of rational orientation to a system of discrete individual ends (thus Zwecktrational).488 That is, human behaviour motivated by expectations of an external situation or “making use of expectations as conditions or means for the successful attainment of the actor's own rationally chosen ends".489
This is where the new norm and/or new idea influx starts because rational orientation may be borne out of the need for a new adaptation. (2) Rational orientation towards an “absolute value (thus
Wertrational); involving a conscious belief in the absolute value of some ethical, aesthetic, religious, or other form of behaviour, entirely for its own sake and independently of any prospects of external success;”490 (3) in terms of ‘affectual' orientation, especially emotional, determined by the specific effect and state of feeling of the actor; (4) traditionally oriented, through the habituation of long practice"491 or path dependence (Traditionsgemäß).492 The first and the second are at the heart of Weber's social theory. In their explanation, the sole important consideration of the actors becomes the realisation of the values, an area in which knowledge and learning patterns are important empowerment factors. Adler posited that social life is organised through practice and deeds embodied in shared inter-subjective knowledge.493
According to Parsons, the concept of social relations develops from these types of social actions, which denotes the behaviour of actors in plurality. Regulating this becomes the law according to
488 MacIntosh, I., 1997, pp. 163 489 MacIntosh, I., 1997, pp. 162 490 Webber, M., 1947, pp. 88; Parsons, T., pp.126; MacIntosh, I., 1997, pp. 162 491 MacIntosh, I., 1997, pp. 162 492 MacIntosh, I., 1997, pp. 162; See also Hamilton, P., 1992; See also Theory of Social and Economic Organizations by Webber, M., 1947 Edition by Parsons, T., 493 Adler, E., 2011; See also Haas, 1992 88
how norms are received and internalised following a certain normative structure with clear sanctions.494 In its meaningful context, the action of each takes account of the actions of the other and is oriented in these terms in reciprocal mutuality as analysed in the formation of the Dyads,
Triads, and Normative Structure. The social relationship, thus, "consists entirely and exclusively of the existence of a probability that there will be, in some meaningfully understandable sense, a course of social action".495
The next step is a social action that determines the norm as mode of the orientation of social actions following certain empirical uniformities.496 The last of the four steps above, which is most important in norm stratification, is the concept of legitimate order.497 In this last step, “action, especially social action which involves social relationships, may be oriented by the actors to a belief (Vorstellung) in the existence of ‘legitimate order.’ The probability that action will actually be so empirically oriented will be called the ‘validity’” (Gestaltung, taken from Gelten, which is inherently connected to validity) “of the order in question”.498 This legitimate order, its validity and the norms established from it, is what informs the ‘authority’ in Kelsen’s Pure Theory of Law; defined as a system of “coercive norms”499 (within the core state jurisdiction).
These coercive norms are created by the state and rests on the validity of a generally accepted
“basic norm”, which Kelson calls the “Grundnorm”. To him, this rests solely on the supremacy of the state constitution and is supposed to ensure a break with path dependency.500 The Grundnorm is the ontological basis on which every form of learning and knowledge propagation (including
494 Kratochvil, F., 1989 495 Weber, Max, pp. 26-27, 1978; Parsons, T., 1967, pp. 118 496 Weber, Max, 1978 497 Parsons, T., 1967, pp. 118; See also Weber, Max, 1978 498 Parsons, T., 1967, pp. 124 499 Paulson, s. L., 2013; Kelsen, H., 1960 (2nd Edition); Hage, J., 2015 500 Kelsen, H., 1960 (2nd Edition) 89
and especially by epistemic communities) is based. He is not concerned about whatever norm and legitimacy precedes the formation of the Grundnorm.501 Yet Harris argued that “from Pakistan to
Uganda, courts have declared effects of successful critical junctures (thus, revolutions) to change the law in their respective jurisdictions bringing about change to Kelsen’s Grundnorm”.502
Generally, one would place the contention between path dependence and the influx of new ideas with resulting normative changes and their effects on legal and policy context, in the second and the fourth of Weber’s ideas. However, all forms of social action matter because Nicholas Onuf, a pioneering constructivist, proposed actors’ interests, whether state or individual, may be pursued at different levels and are often inseparable. This leads to the suggestion that the state’s interests, values and constitutive identity, and any form of behaviour of actors are all inherently interconnected.503
After the normative uncertainty of a critical juncture, the state must commence social action from the simplest dyadic to the most complex triadic form for institutionalisation. There are several institutionalisms: some rooted in economics, some in history, political science and others in sociology. Following Checkel and the constructivist approach, three major ones are worth discussing:504 they are more likely in the aftermath of the critical junctures we are looking at.505
These are rational choice institutionalism, historical institutionalism and sociological institutionalism.506 For rational choice scholars, institutions are seen as “thin” from a legal perspective, “at most, they are a constraint on the behaviour of self-interested actors – be they
501 Raz, J., 1979; Harris J. W. 1971 502 Harris J. W. 1971 503 Onuf, N., 2002 504 Checkel, J., 1999, pp. 51 505 Offe, C., 1994 506Thelen, K., 1999 90
interest groups" or independent states.507 They are “strategic contexts that provide incentives or information, thus influencing the strategies that agents employ to attain given ends”.508
Historical institutionalism thrives on path dependency because of the importance of history. They start as thin institutions, thus holding laid rules, decision making procedures, treaties, etc. as their most important features. Sociological institutionalists are blatantly thick – emphasising common discourse, present and routine activities – stressing that institutions matter because they construct and constitute the actors and provide them with the understanding of their interests and identities.509 This occurs through interaction between agents and structures – thus a mutual constitution process. The effects of these institutions reach deeper than simply constraining behaviour. In variable terms, the institutions become the dependent variables in the aftermath of critical junctures as they act as custodians of norms in which the settled contentions come to rest.510
These institutions diffuse norms in either political (material) or legal (constitutional rights) terms.
Often, the prevalence of a particular diffusion mechanism depends on the empowerment from the international to domestic level. This may depend on an era, regional conditions, type of governance, ideology, etc. For example, while material and military armament dominated the Cold
War era, humanitarian and human rights norms have characterised its aftermath.
Infusion of New Norms and Values: Systemic frictions are always happening because “actors are always constructing the world. The challenge is identifying what constructions are likely to prevail, and under what circumstances”.511 However, whether through “spontaneous” generation
507 Checkel, J., 1999, pp. 51 508 Ibid, pp. 51 509 Checkel, J., 1999, pp. 52 510 Checkel, J., 1999 511 Haas, P. M., 2001, pp. 11580-11581 91
or “procedures”,512 “current constructions are made in the shadow of past ones”.513 Therefore, an enduring contingent path dependent institutionalism with inertia and lack of new knowledge in polity and norm formation is always likely. These kinds of “frameworks provide the means for specifying which ideas will be influential and the factors influencing the likelihood that they will exercise enduring influence. Furthermore, unique collective outcomes involving learning are possible with the existence and involvement of actors like epistemic communities”.514 Critical junctures remain the highest point of this construction of new normative direction and interest formation. “Otherwise, political behaviours remain a matter of the application of prior frames to understanding and analysing new political choices and options, with conflict of interests resolved through the application of existing institutions and material power resources”.515 Prior structures and past ideological lineage will affect any dyadic and triadic social relationship formation, regardless of whether motivated by reciprocity or mutuality. However, the role of agency, structure and new ideas cannot be taken for granted.
For example, infusion of ideas should be prevalent in a case like Ghana. However, instead of abstract theoretical debates to explore state identities and interests constitutive of the viability of existing ethnic identities, there is a haste to join communities of nations, focusing on outer projections at the expense of inherent constituent identities and interests. Such outer focuses limit the degree of contentions at critical junctures and render internal norm generation unimportant.
Instead of norm contestations, they ensure internationally descending norms override internally generated ones. This ensures a centralised collection of state power and creation of fringes where the arms of central powers are difficult to reach; ensuring fringes versus central powers create ethnic conundrums that the state can hardly address.
512 Kratochvil, F., 1989, pp. 69 513 Haas, P. M., 2001, pp. 11580 514 Haas, P. M., 2001, pp. 11580 515 Haas, P. M., 2001, pp. 11580 92
Few scholars focus on the normative aspects of ethnic politics in Africa. “Most treat it as objects of empirical investigation, which they hope will foster a more inclusionary hybrid concept identity of the citizenry, and engender less exclusionary states”.516 Though similar ethnic conundrum is observed in the disintegration, Slovenia’s approach resulted differently because of a normative theming of the issue in the form of efforts to base constitutionality on cultural traits from the onset.
This rather allowed inclusionary and more hybrid concepts of identity than the infusion of ideas on a practical level.517 Before engaging in the empirical case studies, it is vital to look at contention at critical junctures and how it fosters change in state interest within this theoretical inference.
The Contention between Path Dependence and New Norms
New starts after critical junctures require directions shaped by certain values and norms. The norms are introduced as legal and policy principles to regulate social relations and institutionalise political relations and processes.518 Through international and domestic policy coordination, actors acting at such junctures learn new patterns and may consequently pursue new interests.519 This friction as critical junctures is imagined as a thrust between path dependence and new ideas. It is a condition that fosters change in state interest and the mechanisms through which the new interests are realised.520
within the framework of this thrust, the “development and application of the epistemic communities’ consensual knowledge”521 ensures “independent mechanisms by which new ideas
516 Yeros, P., (Edtr), 1999 (See also online version on Foreign Affairs.com, reviewed by Gail Gerhard, March 2000, accessed last 09/03/2020) 517 Chandra, K., 2012 518 Cankorel, T., 2008, pp. 167 519 Haas, P., 1992; Cortell, A., & Davis, J., 1996 520 Haas, P., 1992 521 Haas, P. M., 2001, pp. 11580 93
are generated, selected and authoritative actors to persist over time”.522 Using it to analyse this contentious thrust weakens Toke’s critique of the epistemic communities model as too positivistic.523 However, Dunlop counters that if anything, it is just a theoretical
“undernourishment and not a deep-rooted positivism”.524 This thrust between path dependence and in-coming ideas strengthens the model’s rejection of the idea of learning as a continual process that occurs through exposure to a new body of information resulting from practice.525
Koivisto contends the institutional character of state power is in the norms and practices that are
“historically represented in the path dependent, material organizational architecture of the state”.526
Therefore the degree of thrust may depend on how long the states have existed.527 There are different ways in which these interactions take place. In some parts of the world, new ideas are only auxiliary to the existing system because of the system’s durability, which makes it resist the uncertainties of critical junctures. For instance, Koivisto finds that in the Nordic welfare states, one would expect the touting of global trends and globalisation would have seriously pushed aside their welfare model. However, he noted that much of the interaction and resulting changes depended on the ideological conviction of those who pushed the policies; that social democratic models were difficult to penetrate with new norms, as their effects are universalist-based unless there is a clear critical juncture, perhaps a belligerent one.528
Nevertheless, for how long can such resistant systems continue to look for efficiencies in these historical processes without clear critical junctures? This question is important because as long as
522 Haas, P. M., 2001, pp. 11580 523 Toke, D., 1999 524 Dunlop, C., 2000, 1-2 525 Ibid, pp. 1-2 526 Koivisto, M., 2012, pp. 11 527 Ibid, pp. 141-142 528 Koivisto, M., 2012, pp. 141 94
interests, laws, ideologies and norms change, new ideas could at some point, no longer be compatible with the existing system.
Path dependency seeks feedback to work towards ‘perfection’. However, it moves along the lines of natural selection and the outcome of natural selection is not perfection but instead a series of progressive adaptations that lead to differential reproductive successes.529 This is true in law and politics as in biology. Legal and political equivalents of this “imperfection”530 remain throughout the international system. Scholars of “new institutionalism in political science examined ways in which institutions evolve over time and concluded that the common claim that historical processes lead inevitably towards efficiency is both theoretically and empirically faulty”.531 This conclusion underlines the critical junctures as points of reassessment and readjustment for existing norms to contend with incoming ideas. This also means an extensive amount of time may be required to adjust during which diverse, conflicting and inefficient solutions survive.532
An “equilibrium or an effective solution may not exist, and even if one does exist, an adaptive rate of the historical process may proceed more slowly than changes in the environment”.533 This leads to a perpetual lag between institutions, rules and the environment. As we learnt from Koivisto, institutions are resistant to change, and they often embed routine in a structure and develop their own criteria of appropriateness, and success, and socialise the existing arrangements.534
Furthermore, the cost of reversal and critical junctures are often seen as unbearable. Such phenomena happen in law. Therefore, when the rate of change in the legal process outpaces the
529 Greener, I., 2005 530 Hathaway, O., 2003, pp. 139 531 Hathaway, O., 2003, pp. 139; See also Thelen, K., 1999 532 See Hathaway, O., 2003 533 Hathaway, O., 2003; pp. 104 534 Koivisto, M., 2012 95
adaptation of legal rules, there is the need for critical junctures to effect proper change because equilibrium is unlikely to be achieved before the environment changes.535
535 Lang, A., interview 22nd July 2014, Ljubljana; Hathaway, O., 2003 96
Methodology: Qualitative Analysis
Constructivists’ empirical analyses have been employed in many ways in recent international and domestic legal and policy analyses, with the most notable being Antje Wiener, Thomas Diez,
Risse, Jeffery Checkel, Knud Jørgensen, Christiansen, etc., in European integration studies.
Another aspect of the emerged empiricist tradition of constructivism on the domestic level focuses on norms and ideational interpretation of state identity. The likes of Craig Thomas, Jeffrey
Checkel, Martha Finnemore, Kathryn Sikkink, Victor Adler, and Peter Katzenstein have researched this field. The methodological approach is mostly qualitative interpretive.536
The empirical analysis of this study mainly ascertains theoretical claims made in it. According to
Harry Eckstein, this is a viable reason for two empirical case analyses with no importance attached to the likelihood of convergence.537 Looking at decolonisation as a transformation process from the Gold Coast to Ghana, it presents a critical juncture, which provides a model for analysing the involvement of knowledge groups in normative changes. Their roles will be analysed later to establish whether they are epistemic communities. Disintegration as a critical juncture also examines the emergence of the state of Slovenia from the former Yugoslavia with an analysis of the role of knowledge communities who may or may not qualify as epistemic communities.
A random choice of a single case can provide facts needed to support the theoretical claims.
Similarly, choosing more than one, albeit not for comparative reasons, provides facts about two different critical junctures. As each case has something distinct to offer, their legal, historical, environmental, social, political and cultural circumstances could require different details of methodological approaches that may provide each case with a unique outcome. Ghana's post-
536 Stake, Robert E., 2006 537 Eckstein, H., 1975 97
independence efforts to switch to socialist norms and Slovenia’s pioneering abandoning of the
Yugoslav Socialist Federation for a liberal democratic normative approach provide practical cases of changes at critical junctures. Nonetheless, according to Lijphart and Eckstein, while the comparison is not an objective, it is not entirely impossible to find points of convergence in atypical cases.538
The choices of cases and their geographic location are important in terms of diffusion of norms from the core of the international system.539 This is significant in examining the effects on social construction, normative rearrangement and constitutional legitimacy. Choosing cases outside the core states jurisdiction helps to test theoretical disputes between Kelsen’s utilitarian approach, which assumes normativity is similar everywhere,540 and the constructivist model, which assumes norms, laws, and policies are transferred from the core states through diffusion and empowerment.541 The role of epistemic communities is important in the constructivist claim as agents of normativity and diffusion.542 If this study is undertaken with variables, they will be important independent variables. Critical junctures become dependent variables, thus, times when independent variables such as structure, agency, ideological tendencies, new ideas, knowledge in the form of epistemic influence, etc., can all congregate to contend.543
Interpretive constructivist case study analyses appear subjective. However, renowned case study specialists such as Robert Yin and Robert Stake base their approaches in the constructivist paradigm.544 This is because constructivists’ underlying meaning of objective interpretation in
538 Lijphart, A., 1971 and Eckstein, H., 1975 539 Reus-Smit, C., 1999a 540 Spaark, T., 2005 541 Reus-Smit, 1999a; Cehckel, J., 1997 542 Guzzini, S. and Neumann, I., (Edtrs), 2012; Haas, P., 1992 543 Kumar, R., 2005 544 Yin, R., 2014; Yin, R., 2003; Stake, Robert E. 2006 98
research does not lie only with the informant or the enquirer; it goes beyond that to seek more than a positivist interpretation of a phenomenon.545 These authors assert that truth is relative and dependent on one’s perspective. This paradigm “recognizes the importance of the subjective human creation of meaning but does not out-rightly reject the notion of objectivity”546 as classical theorists would claim it does. In this paradigm, pluralism, not relativism, is stressed upon, with focus on the circulation of the dynamic tension of subject and object.547 Another issue in this regard, according to Miller & Crabtree, is that communities are heterogeneous and made up of many different groups. Information given by informants can, however, only be drawn from one group.548 Thus, constructivist analyses make use of ideational ontology and holism, allowing a case study methodology to work in interpretive, narrative, explorative and descriptive ways.
Constructivism is built upon the premise that reality is socially constructed and that both the constituent attributes of an object or reality and its functions play equally important roles.549 From this approach, the participants are able to describe their own views of reality, which enables the researcher to understand the participants’ actions better.550 This approach is best understood through case studies because it is a method that “allows investigators to retain the holistic and meaningful characteristics of real-life events"551 such as collective values, and organisational and managerial processes. Case studies seem to be the preferred strategies when “how” or “why” are the main concern of the research, according to Yin.552
545 Yin, R., 2014 546 Hesse-Biber, S. and Johnson, R. B. (Edtrs.), 2015, pp. 4 547 Hesse-Biber, S. and Johnson, R. B. (Edtrs.), 2015, pp. 4 548 Miller & Crabtree, 1999, pp. 10 & 84 549 Wendt, A., 1999; Searle, 1995 550 Breckenridge et al, 2012 551 Yin, R., 2003, pp. 4. 552 Yin, R., 2003; Yin, R., 2014 99
The qualitative and theoretical nature of the research questions makes expert opinion the main criteria for the selection of informants. Experts are selected based on their in-depth knowledge, academic and theoretical capacity and institutional influences, which according to Kelsen, plays a role in the normativity of laws;553 and according to Stone-Sweet, shapes social and political actions, conflicts and narratives in the dyadic and triadic social constructions.554 As the same experts may belong to epistemic communities, the selections are made according to the four ways
Haas and Adler proposed epistemic communities exert influence.555 Informants are mixed between academics and practitioners, the latter mostly employed within state institutions with judicial and policy capacities. The disciplinary backgrounds of the experts equilibrate between legal, policy and social sciences for interdisciplinary perspectives. The constructivist element of the research is maintained through the acknowledgement of the subjective human creation of meaning, the influence of constitutive effects on social action and the role of agency in social inquiry.556 Experts are allowed room to express their opinion, as Bryman posits such research should be done, and answers are not narrowed in one or two directions.557
Robert Yin, citing Eckstein (1975) and Lijphart (1975) says qualitative expert opinions are good for exploratory studies, especially those of a deviant nature in comparative analysis.558 Since the questions are about norms and values, "the elicitation of such norms of behaviour is likely to have considerable overlap with questions about attitude and beliefs because norms and values can be construed as having elements of both".559 Hence, respondents were allowed varying and unusual
553Kelson, H., 1952 554Stone-Sweet, A., 2003 555Adler P., and Haas, P., 1992 556Yin, R., 2014 557Bryman, A., 2004, pp. 145 558Yin, R. pp. 53, 2009 559 Bryman, A., 2004, pp. 151 100
responses, which in turn can be useful for generating fixed-choice questions and "coding" in case a quantitative analysis is desired or becomes necessary.560
The methodology was not designed in a hierarchy of one method placed or preferred over another.
It is a qualitative study in which any emergent quantitative analysis can be addressed within the qualitative framework. Franklin thinks any quantitative option for "elaborating social theories to bring in additional features of the world, found necessary for a full explanation" must be maintained.561 Avoiding the common misconception of hierarchical case design is important because the complex logical transcendence may lead to drawing conclusions while neglecting certain important factors. Therefore, in this study, within the case study methodology itself, the approach to the central research questions are arranged in terms of which methods take the lead.
By so doing, methodological processes align with the subject matter rather than laid out rules.
Aside from expert interviews, the cases are also designed for qualitative content analysis.
Case study is the preferred method because of the "how" or "why" questions. The focus is on a real-life phenomenon.562 Therefore, the approach is exploratory and interpretive, complemented by an explanatory method. These are attributes that allow the investigator to retain holistic and meaningful characteristics of real-life events such as describing or interpreting phenomenon, organisational processes and environmental change. Interpretive case study methodology is ideal for social and legal inquiries seeking to gain empirical knowledge and an understanding of how normative expressions of the law and legal proceedings impact on the parties involved. They are not ideal for strict legal enquiries aimed at demonstrating brute technical argumentation ability
560 Bryman, A., 2004, pp., 151 561 Franklin, pp. 240 in della Porta and Keating, M., 2008 562 Costa, Eric & Soares, António & Pinho de Sousa, Jorge., 2016 101
with winning as the end to achieve. Bradley and Cownie called these differences in “the processual paradigm as opposed to the rule-based paradigm”.563
“Comparative” Deviant Case Studies564
Since direct comparison is not an aim in this study, it is important to address the deviant nature of the case choices from the outset. Deviant case analysis is a procedure for checking the validity and generality of whatever phenomena emerge from mostly inductive methods. It requires flexibility and works with hypothesis testing and disproving methodological principles.565 As an essential ingredient for testing more than one case at the same time without necessarily comparing them, it is very important in this research. Cases must not have clearly defined variables, rules of conversational sequencing nor statistical regularities. They can demonstrably be used in the logical transformation of cases.566 This makes it ideal for testing and studying structurally continuing processes such as path dependency as well as for change phenomena such as the idea of critical junctures.
Deviant case analysis is also a methodological approach that can be an outcome of a researcher's sampling decisions and data treatment. It is “referred to as negative case analysis and findings generated from its data may explain a wide range of observations”.567 This provides both the
“opportunity for finding novel theoretical relationships” and developing new ones as well as “the confidence that the study has been conducted in a rigorous way”.568 It is a process by which theoretical ideas are revised and redesigned as data is evaluated so that data can be organised and
563 Bradney, A. and Cownie, F. 2003, pp. 357 (See also earlier publications of Cownie, R. and Bradney, A.) 564See Thomas, G., Jan. 2011 565Mitchell, J. C., 1983 566 Lijphart, A., 1971 567 Mills, A. J., Durepose, G. Wiebe, E., 2010. 568 Ibid, pp. 289 102
compared to the theoretical relationships contained therein. It involves “ the search for and discussion of elements of the data that do not support or contradict patterns or explanations that emerge from the data analysis”.569 Deviant case analysis may help revise, broaden and confirm certain patterns that may emerge from the data and the analysis.570
The issue of comparison is discussed here, and the word “comparative” in the subheading above is placed in parentheses simply to call attention to the fact that comparative insight is not a desired outcome in the study. “Most case studies typologies reflect some variation of Lijphart’s categories of theoretical, interpretive, hypothesis-generating, theory-confirming, theory-informing, hypothesis-disproving and deviant case studies”.571 Others reflect Eckstein’s “categories of configurative-idiographic, disciplined-configurative, heuristic, plausibility probe, and crucial case studies, which combine research objectives and case selection techniques, and consequently result in nonparallel categories”.572 Bringing them together in one research is often done not to draw similarities and differences but to show patterns that emerge in both cases concerning certain processes and phenomena.573
Based on this idea, we constructed a simpler and more useful typology by focusing on the theoretical and conceptual research objectives using empirical cases to illustrate emerging phenomena. The basis of this typology consists of idiographic case studies, which aim to describe, interpret and/or explain particular cases, and which can be either inductive or deductive hypothesis-generating or hypothesis-testing case studies. It combines “Lijphart’s theory-
569 Saini, M. and Aron Shlonsky, A., 2012, Case Study Glossary, pp. 179; Creswell, J. W., (1998 570 Wicks D., in Albert J. Mills, G. Durepos, & E. Wiebe (Edts.). 2010; See also Saini, M. and Aron Shlonsky, A., 2012, Case Study Glossary, pp. 179 571 Levy, J. S., 2008, pp. 3; Lijphart, A., 1971, pp. 691 572 Levy, J. S., 2008, pp. 3; Eckstein, H., pp. 96–123 573 Eckstein, H., 1975 pp. 104–08 103
confirming and theory-informing categories; and plausibility probes, which are an intermediary step between hypothesis generation and testing”.574
A comparison is a factor that is important to discuss, although it is not an aim of the study. This is because, according to Levy, it is inherent in all sciences, including law, policy studies and in the social sciences, where comparative research has historically played a significant role in their development as scientific disciplines.575 Ragin points to significant differences with methodological implications between the orientations of most comparativists and non- comparativists. He sees an advantage in non-comparativism because of its ability to focus on and appreciate significant details.576
In conclusion, hypothesis testing, which is an aspect of the deviant case study, needs to be addressed. As a process that can constantly be redefined in an analysis until it can explain or account for the majority features of a case, it is used here to broaden and confirm patterns emerging from data analysis. In the same regard, a plausibility probe is important because it is applied in the function of theory development and is particularly important here because of the transcending paradigms of the research. Those who question the utility of hypothesis testing in case studies are ensured “well-designed case studies can be used without any reservations in the testing of hypotheses”.577 Eckstein and Lijphart emphasise on hypothesis-testing in case studies because they define the comparative method as “one that uses empirical cases in testing hypothesised theoretical
574 Levy, J. S., 2008, pp. 3; See also Rolfing, R., 2012 (Case Studies and Causal Inference: An integrative Framework) 575 Ibid 576 Ragin, C. C., 1987, pp. 1-6 577 Levy, 2008, pp. 6 104
relationships”.578 Similarly, according to Finnemore and Sikkink, modern constructivist research programmes seem to be developing in ways analogous to these comparative approaches.579
Content Analysis
After employing it in the theoretical inference, content analysis remains at the forefront, not only because of the largely theoretical nature of the study, but also as an essential tool in the case studies.
It is vital for studying the content of existing documents and books as a major methodological approach within the case studies. It helps qualify and categorise the content of the documents according to the desired logic and system. However, it is important to note that it is not a methodology. Rather, it is an approach to the analysis of documents and text than means of generating new data. Hence, it is used herein as the second of two methods.580
Content analysis is important here because it allows the “conception of new meaning”581 and interpretation of texts, and can serve as an "inference technique for objectively and systematically identifying specific characteristics within the text (contents)".582 Using it as a method allows new categories to emerge from either existing data or empirical cases.583 Content analysis also offers the prospect of the consideration of different kinds of units of analysis, hence allowing us to measure emerging trends both at the domestic and international levels. This may be particularly helpful if and when the analysis of further determinants becomes necessary.584 Words may be important; for example, counting the frequency of certain words or names at a particular critical juncture gives weight to the importance of those actors in these events and for the study. Similarly,
578 Levy, 2008, pp. 6; Eckstein, H., 1975 and Lijphart, A., 1975, pp 164 579 Finnemore, M. and Sikkink, K., 2001 580 Bryman, A., 2004, pp. 181-199 581Krippendorf, K. 2004, pp, 25. 582 Ibid, pp. 25 583 Bryman, A., 2004, pp. 183 584 Ibid, pp. 187 105
the text of both existing documents and interview transcripts may be coded according to certain subjects and themes. Essentially, it is a "categorization of phenomena of interest".585 A thematic process of coding is important here because the study takes an interpretative approach586 with both manifest and latent meanings differentiation between general and specialised actors, all very important endeavours in this study.
Content analysis being a typical secondary data analysis approach587 also means the line of the definition of secondary and primary data is often unclear when the research involves primary data collection and analysis of existing data. The role of language is key, as interview, reading and analysis of the content generate both manifest and latent meanings, all of which may play certain roles in answering the research questions. For the sake of the semi-structured interviews, it is significant to remember that the borders between content, conversation and discourse analysis are blurred, and recognising conversation analysis as a sociological tool applicable strictly to talking.
Content and discourse analyses on the other hand, apply to both documents and conversations.588
Semi-Structured Interviews
The semi-structured format interview was chosen. This enabled the researcher to prepare the questions ahead of time and allow enough time to be able to conduct and revisit the interviews as much as required. Open-ended semi-structured interviews allow experts the freedom to express their views in their own terms, as the research is qualitative interpretive. This provides reliable qualitative data. The questions provided space for the expert to give their views on the subject matter. It allowed them time and provided scope for them to talk about their opinions on particular
585 Bryman, A., 2004, pp. 188 586 Ibid, pp. 187, 188 587 Bryman, A., 2004 588 Bryman, A., 2004, pp. 364-370 106
aspects of the subject matter according to their expertise. A structured approach was also undertaken in addition. The interviewees were selected academics and practitioners who deal with the issues at hand either in practice or in theoretical environments.589
Methodological Conclusion
Primarily, interviews were conducted with members of various expert groups and the contents of existing data were analysed because interpretivism, which is central to the idea of what constitutes knowledge, – “related to three stands of Weber's notion of Verstehen, symbolic interpretationism and phenomenology” – is at the core this study.590 It was, therefore, necessary to ask open questions so that respondents, as experts in their fields could answer in their own terms. As proposed by Franklin,591 a quantitative survey was conducted in case quantitative data became necessary. The questionnaires rather generated discussion and contributed to the depth of the qualitative analysis.
Limitations
The critique of this qualitative study is no different from any other that may come from proponents of quantitative research. Though it is a difficult-to-replicate research, it defeats the classical problem of generalisation and the conceptual approach adopted helps avoid the depiction of the social world with this single research. A major critique of content analysis is that the research work can only be as good as the data analysed.592 A case study is not a sample drawn from a population and therefore has a tendency towards generalisation. Accordingly, respondents in this study "are not meant to represent the population, they simply give their responses to strengthen or rebut the theoretical reasoning"593 behind the research.
589 The interviews and observations were conducted between December 2013 and October 2014. 590Bryman, A., 2004, pp. 279 591 Franklin, pp. 240 in della Porta and Keating, M., 2008 592Ibid, pp.197 593 Bryman, A., 2004, pp. 285 107
Unlike the rigid and predetermined categories of quantitative research, qualitative research is interested in the interviewees' point of view, and the interviews reflect the researcher's theoretical claims and concerns. However, as per Scott's recommendation, we added further criteria like checking the authenticity, credibility and representativeness of each data body to strengthen the methodology.594 Social research is mostly non-ergodic and can only be sampled, but in analysing social cases, as in this research, sampling comparison of large volumes of data of different studies of the same nature is often not possible.595 Quantitative values may be assigned certain names, dates or other variables to make a case for their influence through their frequent appearance.596
Case selection bias is an important limitation factor and it is generally agreed that random selection can lead to serious bias. A researcher may face limitations due to picking cases and using them to generate the hypothesis or picking a case because it fits the research hypothesis, both of which have potential challenges of over-representing cases. A form of selection bias, unique to scholarship, that relies on secondary historical accounts in case studies may exist here.597 This is dealt with by ensuring a balance between primary and secondary data. History is important in this study in the analysis of path dependence and historians do not produce theoretically neutral analyses. "If case study researchers rely on historians who share their own set of analytic biases, the data may (unconsciously or otherwise) predispose them toward certain theoretical interpretations"598 without having tested opposing views.
594 Scott, J., 1990, pp. 19-22 595 della Porta and Keating, M., 2008 596 Franklin, in della Porta and Keating, 2008, pp.244 597 Levy, J. S., 2008 598 Levy, J, S., 2008, pp. 9 108
This research follows Jack Levy's advice for eliminating potential bias by benchmarking the case studies with other similar cases before conducting an empirical research.599 The study looked into
Croatia as an alternative case with the same causative factors and dynamics, yet a different outcome compared to the Slovenia case. In the Ghana case, alternatives like Nigeria provide similar conditions and different outcomes. Violence, for instance, is a variable that is missing in the Ghana case but present in Nigeria, though many dynamics of critical junctures are similar.
According to Levy, such a benchmarking serves in limiting case selection biases and as a form of a safeguard from seeing the dynamics of the primary research cases as the only possible outcome.600
599 Ibid 600 Levy, J, S., 2004 109
Inference II: Empirical Inference
Empirical Representation: To What Extent the Empirical Studies Represent the Theoretical Claims in the Research The main reason for deviant empirical case choices is to reduce comparativeness and focus on representing the actual cases of critical junctures. As articulated in the methodology, one case may be enough for analysing abstract contentions at a critical juncture, but it teaches us about only one type. Testing more than one case gives us unique insight into different types of critical junctures.
Slovenia’s geographical closeness to core states and its ideological experiences demonstrate unique dynamics in changes in norms and values over time. In its empirical research, path- dependent behaviour is largely found in legal procedures, attitude and practice.601 In Ghana’s case, because colonisation builds structures to antagonise local norms and exogenous influences endure, a distorted idea of path dependence and a difficult structural conditioning occurs.
Choosing cases outside the core state jurisdiction was important because of the central role of norm transmission and its agents. It helps to trace the travel of, the influence, the farthest reach of ideas and norms and their impact at critical junctures. The diffusion of norms from core states jurisdiction – the space where the moral legitimacy of modern states “spawned” from, according to Reus-Smit and Kurki & Sinclair – is central in constructivist empirical research.602 Furthermore, it is important to look at both cases in relation to states in the core jurisdiction because we deduced in the theoretical inference that long-term stability and infrequency of critical junctures in the core state jurisdiction make them hardly receptive for new ideas.603 Long-term path dependent structures create automation of systems, which make them resilient to change, and as such difficult to test ideas influx with. Ideas hardly cut across in such systems, they rather enter as auxiliaries.
601 Hardi M. and Lang, A. Interviewed 18th and 22nd July 2014), Ljubljana 602 Reus-Smit, 2009; Kurki M., and Sinclair, A., 2010 603 See Koivisto, M., 2012 110
This observation shows states outside the core state jurisdiction may be more receptive to new ideas because of the frequency of critical junctures. Therefore, with credence to that idea, and on the premise that we are in a constitutional rights protection, as opposed to material power international regime, analysing the states far and near of the core jurisdiction may offer new perspectives.
Much of the normative context of current international norms starts after WWII, but the internal contestations, which eventually led Slovenia to independence, really started after the 1974
Yugoslavia constitution when “antagonizing the state of Yugoslavia translated into Slovenian nationalism”.604 The Ghana context takes from dissident intellectual works of different Diaspora communities in the West and at home in the colonies, and the wave of decolonisation that followed
WWII.605
The case studies inference begins with the normative changes that occurred at the two critical junctures. It then looks into the transition of norm empowerment since the aftermath of WWII as the international era under consideration in this study, before giving perspectives on its implications in governance. It goes on to analyse the practice of the concept of epistemic communities, first in general and then in relation to each case. This seeks to relate the ideational and knowledge contributions of influential actors in the cases to the concept, to establish whether such actors were indeed epistemic communities. An inference on whether their influences delineate them as such communities is followed by the concluding chapter. The conclusion investigates theoretical lessons we can draw from changes in norm, constructivists perspectives,
604 González Villa, C., 2015, pp. 64 605 Hargreaves, J. D. 2014 111
the contention between path dependence and infusion of new ideas and finally, lessons from the empirical case analyses.
Normative Changes in Disintegration: Slovenia
Yugoslavia was reconstituted into a socialist Federal People’s Republic in 1946 after the Monarchy was abolished the year before.606 Some scholars argue Slovenes sought security and stability in the Yugoslav Federation. This could be true prior to the 1974 constitution because of the original objective of uniting South Slavic groups.607 Slovenian Scholars were foremost in building the federation, as we would learn later.608 However, once it was conducive for individual and ethnic rights to be the basis for a state, the Slovene Republic – which although just eight percent of the population, “contributed over 25 percent of total federal budget”,609 – was determined to assert its rights.
According to Janez Kranjc, remnants of stark semblance with Austria-Hungary – what he called
“Germanic culture” – in Slovenia meant socialist policies could not really penetrate the fabric of
Slovenian society as they did in other parts of the federation. He maintained Slovenia used its production prowess to sustain the federal economy, contributing between 17 and 19 percent of federal funds for underdeveloped regions of the federation.610 Reports of federal officials diverting such funds fuelled the self-determination cause among students and intellectuals.611 Tito’s death six years after the 1974 constitution revealed three fundamental problems: divergent ethnic interests, economic crisis, and institutional decay, essentially, a deterioration of the state. The
606Ramet, S., 1992, pp. 29 607 Cohen, L. 1993 608 Robertson, J., 17th July 2017 609 Ibid, pp.59 610 Kranjc, K., 22nd July 2014, Ljubljana 611 Cohen, L., 1993, 45-50 112
socialist centre no longer holding meant the nations’ ethnic identity traded-off for protection fell and each had to fend for themselves. The 1987 Nova Revija612gathering, which was an intellectual
‘ambush’ and the birth of the DEMOS Coalition, proved crucial to the eminence of disintegration.613 Two points are crucial here concerning this research: the change in normative thinking to factor ethnicity in state sovereignty and the fundamental role of the Nova Revija gathering.
The identity of the state of Slovenia has cognitive, ideational and social influences. The disintegration of Yugoslavia as a point of normative disarray helps us answer questions of social construction, norm evolution and Slovenia’s identity reconstitution. In this, we are able to analyse the role of identity in shaping political action and a mutually constitutive relationship between agents and a structure shaped more by ethnicity and culture than politics.614 Much of the factors that led to disintegration (within Slovenia) depended on how the communist rhetoric and actions were constructed in the Republics. We find Slovenia was positioned to provide ideas to construct the norms of the state rather than just interact, making it important for the sustenance of the federation.615 Thus, as per constructivist understanding, Slovenian theorists made key ideational and social contributions in constructing the material identity of Yugoslavia.616 This interpretation also makes sense from a rationalist point of view because of its economic prowess.
The 4th Yugoslav constitution, which eventually became the last one, starts the conversation for the need for a new social context debate on sovereignty. For Brglez, there is no disconnect between this and the fact that constructivist ideas started to shape around those same time.617 From Janša's
612 Borut Mekina, interviewed July 16th, 2014, Ljubljana 613 Janša, J., 1994 614 See Reus-Smit, C., 1999a and b 615 See González V. C., 2015; Kranjc, interviewed July 2014, Ljubljana; Robertson, J., 2017 616 See Robertson, J., 2017 617 Brglez, M. and Brinar, I., Interviewed 16th July 2014, Ljubljana 113
narrations, loose collaborations that emerged between policymakers and the knowledge groups, writers and artist collectives of the post-1974 constitution were interested in shaping a new Slovene
Narrative for a new independent Slovenia.618 Brglez could not tell if indeed any of the members of the emergent intellectual communities were aware of the new policy debate within the
Foucauldian governmentality, constructivism or epistemic influence on governance at that time.
However, their actions resonated with constructivist concepts of social contextualisation of the international system, state identity creation, which seemed to help the re-theorisation and implementation of sovereignty in the late 1970s and throughout the 1980s.619
For Brglez, the debate of the new identity had to be propagated and kept within a socio-cultural context. Kranjc mentioned that a socio-cultural variance that set Slovenia apart within the
Yugoslav Federation existed throughout the integration period. For him, they manifested in areas such as legal arrangements, linguistic differences and economic performance620. The autonomous sub-national branch of the Yugoslav Communist Party, the Communist Party of Slovenia, allowed the formation of the DEMOS Coalition in November 1989 following the Nova Revija gathering, soon after which other political parties followed.621 However, the Slovenian Peasant Union
(Slovenska kmečka zveza – SKZ), was already formed earlier in 1988.622 These events and formations of organisations played significant roles in decentralising political discourse in the
Slovene Republic. A central figure that could embody the discourse is Sergej Kraigher, who became the Slovenian member of the collective presidency and later the president of the presidency of Yugoslavia from 1981 to 1982 after the death of Tito.623
618 See also Mastnak, T., 1994; Janša, J., 1994, Brglez, M. and Brinar, I., Interviewed July 2014, Ljubljana 619 Brglez, M., Interviewed 16th July 2014, Ljubljana. 620 Kranjc, J. Interviewed July 2014, Ljubljana (He thinks Slovenia’s legal system had more in common with German/Austrian ones than they did with the socialist arrangements) 621Kopac, J., 2007 (cited from Author’s English Summary) 622 González Villa, C., 2015, pp 56 623Kopac, J., 2007 (cited from Author’s English Summary) 114
Kraigher was born in a family of prominent writers and left-wing activists and he later became an influential communist politician. He fought with the Partisan Resistance and rose through the ranks of the Communist Party of Slovenia in the 1940s. There were many socialists like Kraigher with an openness towards self-determination.624 He held the chairmanship of the People's Assembly of
Slovenia from 1967 to 1973 before he rose to serve in the Presidency as the president of Slovenia from 1974 to 1981. Under his tenure as president of the presidency of Yugoslavia, social, political, economic and ethnic rifts, which the communist party had suppressed, became visible.625
Tito’s death also opened a dialogue between sovereigntists and communist federalists within
Slovenia.626 Kraigher who also served as the chairman of Kraigher Commission, which the federal government set up and named after him to advise on the country’s economic crisis of the early to mid-1980s, did not go against this open dialogue.627 His handover of the leadership of the presidency of the federation to the Serb Petar Stanbolic may have stifled dialogue on the federal level. The leadership style of pragmatic socialists like Stane Kavčič, Kraigher and Milan Kucan sowed seeds that set it apart from other communist parties in the federation. It continued with
Kucan eventually becoming the first president of independent Slovenia.628 This reform minded approach might explain why Slovenians would elect the same communist party leaders after independence.
Such reform minded socialists with perspectives on the political future of Slovenia did not like a
“hurried” alignment with what they saw as a Western centre-left and centre-right that looked alike,
624 Burg, S., 1986 625 González Villa, C., 2015, pp. 69 626 Ibid 627 Burg, S., 1986 628Kopac, J., 2007 (cited from Author’s English Summary) 115
according to Gal Kirn.629 Sreco and Nada Kirn, who were student activists during the critical period of 1989,630 held the same views. Kraigher and the Kirn family were part of the post-1974 constitution socialist Slovenia, who espoused self-determination and were open to other influences. The Kirns spoke of the key importance of often-unseen influences such as that of the
Roman Catholic Church, which Kranjc referred to as socio-cultural subtle influences that were present throughout Slovenia’s days as a socialist Republic in Federal Yugoslavia.631
The material advantage of the central government in Belgrade over the Republican authorities in
Ljubljana meant that the latter had to negotiate an ideationally influenced self-determination path within the international legal context. This obviously needed epistemic influences with the relevant knowledge. There was a need to garner popular social legitimacy from within the Republic and international support from without, which was fast changing in Slovenia’s favour.
According to Gonzalez Villa, around 1988 the Slovene Republic National Assembly carried out
“substantial constitutional reform to reconfigure the ideological meaning of sovereignty and institutionalize” it.632 By the 1989 Nova Revija meeting, intellectual communities mainly made up of university professors, reporters and writers were, whether knowingly or not, shaping new operable values and interests by re-conceptualising the idea of sovereignty. Prof. Franc Zagožen, a professor of Biotechnique at the University of Ljubljana, wrote of “the need for young people to create an organization to represent the Slovene peasants”.633 Hegemonic language was avoided because the needed change actually lay in the paradigm of social legitimacy.634 The arrest of Janez
629 Gal Kern interviewed August 2014, Ljubljana. 630Sreco and Nada Kirn, 23rd July 2014, Ljubljana. 631 Kranjc, Interviewed 22nd July 2014, Ljubljana 632 González Villa, C., 2015, pp. 53; Janša, J., 1994 633 González Villa, C., 2015, pp. 57 634 Normativity is what González Villa called the “change in the paradigm of legitimacy” (pp., 54,55 and 75) 116
Janša and the formation of the Committee for the Defence of Human Rights, the “Odbor”,635 marked a turning point in language and approach towards the federal government. By then,
Slobodan Milosevic had joined the presidency as the President of the Serbian Republic.636
Rogel’s view that Slovenes in Yugoslavia were offered a ‘realpolitik’ advantage, as well as a cultural and spiritual union with other South Slavs,637 suddenly had less weight. The social and ideational debates could sustain the state. Article 5 of the Constitution of Slovenia affirms this.
Both of its paragraphs underline all aspects of Slovene identity from a constructivist point of view, both within and outside the geographical territories:
In its own territory, the state shall protect human rights and fundamental freedoms. It shall
protect and guarantee the rights of the autochthonous Italian and Hungarian national
communities. It shall maintain concern for autochthonous Slovene national minorities in
neighbouring countries and for Slovene emigrants and workers abroad and shall foster their
contacts with the homeland. It shall provide for the preservation of the natural wealth and
cultural heritage and create opportunities for the harmonious development of society and
culture in Slovenia. Slovenes not holding Slovene citizenship may enjoy special rights and
privileges in Slovenia. The nature and extent of such rights and privileges shall be regulated
by law.
Article 5: Constitution of Slovenia
Pirnat thinks the political identity of Slovenia rests in a historical context, which he sees as being cultural and social rather than political.638 For him, normativity rests in socio-cultural norms, not
635 The organization was set up in solidarity with the “four of Ljubljana” who were arrested and sentenced towards the end of 1988, known as the Committee for the Defence of Human Rights (Odbor). It coordinated the activities in solidarity with the detainees. 636González Villa, C.; 2015 637 Rogel, C. in Benderley, J and Kraft, E. (Edtrs.), 1994, pp. 4-6 638 Pirnat, R. Interviewed 16th July 2014 117
legal norms; that ceding political security identity to the federal authority in Belgrade does not cease the existence of social and cultural identity. His views reflect the new construction of identity, which is primarily given by selfhood and other smaller precursors than the state. For Borut
Mekina, it is a primary point of garnering external and popular internal support, and a way of legitimising the state’s existence.639
To put this in context, security-focused constructivists see this as an alternatives approach in security640 and law constructivist theorists like Karber see it an operationalisation of law.641
Katzenstein sees the important role of culture in state identity as a precursor for security while
Klotz sees the weight of popular support as ideas and social tools for steering the normative direction of issues such as security.642 Checkel also examined this from the changing conceptions of citizenship and the rights of minorities within the former Yugoslav and Baltic language speaking
Russians.643 However, arguing normative reconstitution as security does not sustain the state until legal institutions are founded. The founding of the “Odbor” on 3rd June 1988, amid the uncertainties of the socialist future of Federal Yugoslavia, became a turning point in the legal outlook of Slovenes towards liberal democracy.644 This also makes a case for constructivism as a method in both law and security.645
In reflecting this further from law and security to policies, Bucar suggests the institutional framework for policy innovation is in continuous adaptation with a backlog of what the system needs to readjust to work, and much will continue to depend on ideas and human agency as
639 Mekina Borut, Interviewed 16th July 2014, Ljubljana 640 Katzenstein, 1996a; Checkel, 2998 641 See Karber, S., 2000 642 Klotz, A., 1995; Katzenstein, P., 1996a and 1996b 643 Checkel, J., 1999 644 Janša, J. 1994 645 Karber, P. A., 2000; Katzenstein, 1996a 118
adaptation times may take a generation.646 Briner’s view that the “new Slovene system often exhibits an inability to work the old structure, hence at such times becoming reliant on human agency”,647 supports Kranjc’s view that Slovenia maintained a certain level of structural differences within socialist Yugoslavia.648 However, the search for the most efficient division of tasks between different state institutions and the influence of technological changes continues.
Many policymakers see the objectives of the state as one in which it needs to catch up with core states. However, the actual work has become a search for the best legal framework to fit the state’s democratic positioning rather than following an existing tradition.649 Impacts and results have become important factors that characterise the performance of the state. If we look at the characterisation of contemporary Slovenia by impact and results within the idea of speech-act theory, human agency necessitates performativity and function regardless of the state of the structure at that time. Unlike socialist regimes where the system aspires towards an ideological
“haven”, social action in systems characterised by impacts and results do not adhere to or defy prevailing normative beliefs. They work with what is available at each time.
According to Nenad Glücks, of the Reporter Weekly New Magazine, the restructuring of the political landscape in Slovenia also reveals a quickly reorganised centre-right conservatism. He thinks conservatism has always been around, but socialism tamed it, and that is inherent in socialist environments.650 His point cannot be ignored because of Catholicism’s central role in Slovene history and culture. From this observation, one simply falls back on Rogel and Kranjc’s arguments that socialism was a result of searching for security in the South Slav union to keep hegemonic states off Slovenian territories. However, the role of Slovenian theorists in shaping Yugoslav
646 Bucar, M. Interviewed 17th and 23rd July 2014, Ljubljana; Hardi, M. and Lang, A. Interviewed 18th July 2014, Ljubljana 647 Brinar. I., Interviewed 16th and 18th July 2014, Ljubljana 648 Brinar. I., Interviewed 16th and 18th July 2014, Ljubljana 649 Bucar, M. Interviewed 17th and 23rd July 2014, Ljubljana 650 Nenad Glücks, 22nd July 2014, Ljubljana 119
socialist ideas, as we shall see in the epistemic discussions, meant a lot to the survival of the
Federation.
Six key informants in this research place this ‘legitimacy dilemma’ in different sources. Brglez, with proficiency in constructivist nexus, sees it as the only possible normative outcome of the precipitating factors; that it was a perfect case of constructivist cogitation. 651 Glücks sees this normative precipitation because of building leftist ideals on a conservative society that has been
‘forced’ into socialism. For him, Slovenia’s conservative Catholic past is one aspect of its identity that has not really been given a deserved political thought and chance despite its prominent role in the country’s history.652 Gal Kirn, who is also a founding member of The United Left Party, and his parents, Sreco and Nada Kirn, all attribute this to the same sort of enshrined belief in Rogel’s assertion discussed above; that Slovenia, in its entire history, has now matured for self- determination. Gal, Sreco and Nada Kirn, all thought this might have perverted the idea of independence, with Sreco and Nada Kirn largely blaming the Catholic Church for what they called its “monopoly over property rights” in Slovenia.653 Briner rather sees it in the disparities that exist within the nuances of systemic readjustments, a view similar to Brglez’s constructivist musing.
She sees what she calls “the masses seeking refuge in religion by re-joining the church or pinning hope in joining the European Union”,654 as part of the readjustment of post-independence critical juncture. She noted that those who did not yet let go of socialist ideals started to demand its comeback and those who believed in liberal democracy remain hopeful and outspoken.655
651 Brglez, M. and Brinar, I., Interviewed 16th and 18th July 2014, Ljubljana 652 Glücks, N., Interviewed 22nd July 2014 653 Gal Kirn, interviewed Aug. 2014 654 Brglez, M. and Brinar, I., Interviewed 16th and 18th July 2014n 16th and 18th July 2014, Ljubljana 655 Brglez, M. and Brinar, I., Interviewed 16th and 18th July 2014n 16th and 18th July 2014, Ljubljana 120
The condensation of both the internally and externally generated normative influences, in hindsight, makes it easier to choose practical diffusion and empowerment measures to move forward. The state institutions and actors on different levels did this well on the eve of independence. Various groups with epistemic influence e.g. writers and journalist unions, Judges, etc., reconstituted a new political legitimacy with new values and an ideological direction as well as prioritising and prompting selected legal and policy instruments; albeit, with a strong backing from the international community. According to Petrovic, Franci Zavrl, then editor of the Mladina magazine, played a key role in the Slovene Spring in shaping a common narrative for the public and helped to create a “new normalcy”.656 Such actions and the formation of the ‘Committee of the Odbor’ ‘sold’ the inevitability of independence to the public and gave meaning to self- determination.657 Their interpretation of the state’s existence in Article 1(2) of the UN Charter, whose core is individual self-determination, was a case of norm compliance in tandem with international posture, which helped the “discourse gain full force”.658
Ideological “reconfiguration and re-institutionalisation of sovereignty around 1988 through substantial constitutional reform carried out by the national assembly of Slovenia”659 did just enough to release the country from the socialist grip. Very often in contemporary Slovenia, this shift in ideology seemed to manifest as the socialist left moved towards the centre and centre-right conservative elements are drawn from different parts of the society,660 especially from the Catholic core. For example, the Mladina magazine's activism groups Rolanje and PEN, which emerged out
656 Petrovic, P., Interviewed 16th and 22nd July 2014 657 González Villa, C.; 2015; Petrovic, P., Editor of Mladina Magazine. Interviewed 16th and 22nd July, Ljubljana 658 González Villa, C., 2015, pp. 72 659 Ibid, pp. 74 660 “A few months after the constitution of the SDZ, in March 1989, the Slovenian Christian Social Movement was founded. The organization – which became Slovene Christian Democrats (Slovenski krčanski demokrati – SKD) – was the most popular party of the Slovenian right wing after elections in 1990. The movement was created by members of associations like Društvo 2000 (editor Revija 2000) or Slovenska Matica, in which some conservative groups found a working space during socialism”. 121
of the Obdor tradition, often criticised the switch of communist institutions to conservative ones and the involvement of institutions like the Catholic Church in reshaping communist institutions.661 Greif, in an attempt to trace the translation of the achieved self-determination into democratic consolidation, noted that it was an anticipated “causal connection between moderate institutional engineering and the better quality of democracy”.662
An inference on the actors involved in archiving these normative changes is needed. However, a similar normative contextualisation is needed for the decolonisation case. After that, an explanation of the international normative transition and its implication in governance will be followed by a general finding on the epistemic community model before their role as actors within the two cases, and of whether or not they are indeed such epistemic communities with those value driven influences.
Normative Changes in Decolonisation: Ghana
As we shall see in the discussion of the epistemic community model in relation to this case, various dissident intellectuals of different Diasporas, and in the Gold Coast colony shaped the legal and social policy foundation for independence.663 In the British Colony of the Gold Coast, various intellectual communities took advantage of and instituted decolonisation in the United Nations, attaining resolutions to back independence in 1957.664 The "ancient unitarism”665 still largely characterise the system in Ghana. A recent constitutional consultative assembly agreed that the centralised unitary approach made it easy for exogenous influences and internally, unitarism as a
661 Zoran Štrbac and Ali H. Žerdin, 29/10/2001 662 Greif, G., 2006, pp. 3 (Article in Slovene language, citation taken from English abstract) 663Apter, E. D., 1963 664 UN Documents on Decolonization: Resolution 1514 (XV) on decolonization; Chapter XI (Articles 73 and 74), Chapter XII (Articles 75-85) 665Ramet, S., 1992, pp. 29 122
norm rested on the fear of ethnic divisions. This, it was averred, was detrimental to the idea of self- determination and rights protection,666 giving credence to constructivists’ rejection of the ideas that modern politics and economics are incompatible with ethnic identity propagation.667
The 1957 critical juncture of change from the Gold Coast to Ghana was going to be difficult primarily because of the way colonisation works. It births arrays of complexities surrounding the understanding and operability of norms. The transition from Gold Coast to Ghana was the first local political discourse of modern state type in West Africa.668 However, the local post-WWII experts, whose education is stratified against their own self-determination, could not break down norms disseminated from the international arena, nor produce any locally for proper compliance.
Their primary cause of action was motivated by agency, taking advantage of changing international legal frameworks to form different knowledge groups to assert their own brand of sovereignty.
According to Hobsbawm, they had no modern state political traditions dating back centuries, hence skin colour and ethnicity formed the basis of their motivation.669 However, the lack of the discursive engagement required for the system to readjust for injecting new ideas and the necessary normative reconstitution as well as broader technical negotiation expertise, left sovereignty as a mere epoch.670 For example, technicalities within the theory of governmentality and epistemic engagement such as “interests and the calculation of costs and benefits, identities and socialisation, policy legacies and discourse”671 required for propping up and shaping new state identities, legal traditions and interest, were overwhelmed by the emotive approach Hobsbawm alludes to. This
666 Ghana Constitutional Reform Consultative Assembly, July 29th, 2014, Accra 667 Chrandra, K., 2012 pp. 5 668 Curtin, P. D., Feierman, S., Thompson, L., and Vansina, J., 1995 669See Hobsbawm, E. 1990, pp. 67 670Curtin, P. D., Feierman, S., Thompson, L., and Vansina, J., 1995 671 Dunlop, C., Aug. 2011, pp. 3; See also Haas, P., 1992 123
made decolonisation a mere epoch with serious enduring exogenous influences as Easterly points out in The Tyranny of Experts.672
It is important to point out that due to how colonialisms engineer the vilification of local norms, rights and values, and build structures to antagonise them, the nuances of independent actions in most of Africa were grounded in human agency.673 The fact that modern politics, economics and law consider ethnicity and other inherent heterogeneity factors as not viable identity in interest formation674 makes this a test case for a deeper meta-level look into complex phenomena such as colonisation within constructivism. First, we find the actions of any would-be epistemic communities must seriously deal with those complex structural issues. With that missing, the social and ideational context of the process sits on a dual legitimation, one colonial, and the other customary. The legal and social legitimation of the self-determination process had to be garnered from both within the coloniser state (Britain) and in the colonies. Public support within Britain was as important as it was within the Gold Coast colony, as well as within the framework of the
UN decolonisation agenda. 675
It was a pioneering enactment of decolonisation as an international norm in Sub-Saharan Africa but its supervision by the colonising state means new legislative processes remain locked in British
Common Law overriding customary and any other type of law under consideration.676 Atupare posits that the choice of Common Law seemed inevitable because on the eve of independence,
Customary Law was not sufficiently codified.677 The colonial power rejected efforts to codify it.678
672 Easterly, W., 2014 673 See Apter, E., 1967 674 Chrandra, K., 2012 pp. 5 675 UN Documents on Decolonization: Resolution 1514 (XV) on decolonization; Chapter XI (Articles 73 and 74), Chapter XII (Articles 75-85); 676 Harvey, W. B., 1966 677 Atupare, A. P., interviewed 24th October 2014, Accra 678 Harvey, W. B. 1967, pp. 244 124
This seemed in line with colonial thinking that indigenous rights are not good enough to be codified into laws. Atupare maintained the retention of British Common Law was unavoidable because of the close supervision of the colonial power and its willingness to grant only limited freedom even after independence.679
The 1884 Berlin Conference borderlines, according to which state sovereign borders are demarcated, is the legal basis of all commitments in international law.680 This means the state social (e.g. Socio-cultural and ethnic) identity and material (e.g. borders and written laws) identities cannot reconcile and depart from any enduring colonial legacies. This leads to an artificial sovereignty,681 resulting in an unparalleled dualistic legal system of English Common
Law and indigenous Customary Law.682 “New constitutional values grow out of profound ontological changes in human consciousness and define the terms of legitimate governance in core states”.683 However, such artificial sovereignty makes that impossible in cases like Ghana. The artificiality of sovereignty and dual legality cement a normative underpinning with serious impractical implications. Law and legal language’s inability to decolonise and reside in postcolonial language, as asserted in the theoretical inference (see page 64), creates further challenges.
Here again, Katzenstein and Klotz’s idea of the importance of norms in security matters684 re- emerges because the post-independent state is left in disarray, reeling in numerous coup d’états.685
679 Atupare, A. P., interviewed 24th October 2014, Accra 680 Resolution 1514 (XV) on decolonization, paragraph 6 681 Gyampo, R. interviewed 3rd November 2014, Accra 682 Proehl, P. O., 1967 683 Soltani, F., Jawan, J., and Ahmad Z, B., 2014, pp. 155; see also Reus Smit, C., 1999a 684 See Klotz, 1995; Katzenstein, 1996a and 1996b 685 Adekeye, A. I., O. and Rashid, D., 2004 125
Any role for local epistemic communities becomes an effort to regain normalcy.686 This leaves the entrenched preconception that indigenous rights are primordial and irreconcilable within modern legal confines - a serious norm affecting perception - unattended to. It leads to the importation of expertise with exogenous values, which affect all state building blocks.687
This also shrunk the role of local knowledge communities, whose self-determination agenda galvanised independence, and made way for international Non-governmental organisations
(NGOs) and trans-national experts. It also kept the deliberations on law and policymaking on the path of historical (colonial) institutionalism, making any idea of state reconstruction based on re- socialisation into local norms, difficult. This forms the pinnacle of one of constructivists’ main critique of international law, thus, exportation of rules and norms without regard to social and cultural contexts.688
International law, whether or not perceived with purity, depends on a moral rationale and is unbinding.689 As it is directly exported from the core states jurisdiction as norms at the expense of indigenous rights and norms,690 it cannot reconcile with the regional and domestic cultures. It operationally reinforces the legal system of the coloniser state. Law and post-colonialism remain an area where much research needs to be done. Law in the non-core state jurisdiction continues to be shaped by the colonial and racial structuring of the power of contemporary politics.691 International epistemic communities disseminate an imposed norm at the expense of
686 Here, the preoccupation of the local epistemic communities with regaining normalcy contributed to their neglect of norms and new ideas influx. 687 Easterly, W., 2014; Apter, E.,1987 688 Kurki, M. & Sinclair, A., 2010, pp. 2; See also Eckstein, 1975; Reus-Smit, C., 1999 689 Reus-Smit, C., 1999; Soltani, F., Jawan, J., and Ahmad Z, B., 2014 690 Ibid, pp. 31, 44 691 Anieva, A.; Manchanda, N.; Shilliam, R. 2015; da Silva, F.; Harris, M. and Bhandar, B., 2015 126
new ideas, through socialisation, agency, speech-act692 and indigenous rights. Therefore, the state practically becomes a ‘playground’ for international multilateral experts.693
The developmental state idea, socialism and all other ideas the post-independent state grappled with are not capable of entirely freeing it from colonial path dependency because according to
Reus-Smit, there is a need for an “ontological changes in consciousness”.694 This change, which is the role of knowledge communities, has not taken place to recondition ideas and social conditions within the state. According to Gyampo, ideological and epistemic deliberations are not encouraged from within Ghana. He maintained that constitutional causalities and constituent effects are contingent from colonial norms and multilateral involvements in arbitrary institution creations, take after exogenous models, often incompatible with local norms.695 Though democracy seems fully ripe, political parties do not seem to have a full grasp of how crucial ideological tendencies are to the constitutional causes and effects of their actions. They may sometimes seem aware of it but do not think the understanding of those causal mechanisms have serious implications for state normative direction, identity and interests.696
The most pervasive normative issue remains the discussed dualistic legal system of customary and colonial common law underpinnings, making it difficult for new ideas to perforate in policy stratification, dissemination and compliance. To understand the “formal structures of public power within and through which legal force is directed and applied,”697 it is important to “look at the evolution of the content of the legal norms themselves”.698 This shows that the co-existence of two
692 Kratochvil, F., 1989 693 See Easterly, W., 2014, and Dambisa M., 2009; Mkandawire, T., 1998; see also, Johnson, C., 1982 694 Reus-Smit, C., 1999, pp. 96a, Soltani, F., Jawan, J., and Ahmad Z, B., 2014, pp. 155 695 Gyampo, R., interviewed 3rd November 2014, Accra 696 Gyampo, R., interviewed 3rd November 2014, Accra 697 Harvey, W. B. 19667, pp. 240 698 Harvey, W. B. 19667, pp. 240 127
legal systems in one constitution is inherently problematic. Most legal systems are based on one legal normative underpinning. Adding to this is the fact that the Common Law, which is foreign, overrides the indigenous Customary Law in Ghana. To “avoid chaos, some schemes were put in place to delimit the sphere of operation of each body of law and each system of courts”,699 where these spheres coincide or conflict, colonial Common Law prevails.
The precedence of colonial law creates an unparalleled dualism in legal disposition and the general standards defining the relations between English derived law and Customary Law. This was posited prior to independence by the imperial power in the Courts Ordinance of 1935.700 These standards employ two different techniques for relating to the different categories of legal norms.
The “horizontal ordering, involving the assignment of discrete areas of application to each set of norms in the system and a vertical or hierarchical ordering, related to the bodies of law and applying courts as superiors and inferiors”.701 While these are hierarchically ordered for foreign norms to precede local ones, we find that the dominance of the former, over time, leads to
‘disappearance of the latter. Furthermore, the hierarchies are still defined by imperial political power702and not by international law.
Again, the importance of ethnicity and its rejection in modern politics resurfaces here.703 Ethnicity is the main criterion that defines the horizontal order of the relations between the two systems. For example, in cases where the parties are natives, the primary law presumptively is Customary
Law.704 Colonisation considered Customary Law705 "repugnant to natural justice, equity and good
699 Harvey, W. B. 19667, pp. 240 700 Harvey, W. B., 1966, pp. 12 701 Harvey, W. B., 1966, pp. 12 702 Ibid 703 Chrandra, K., 2012 704 Harvey, W. B., 1962, pp. 587 705 Some Intellectuals who would become members of such epistemic communities in various ways, tried to argue for the inclusion of customary law. But it was kept only for civil matters. In the post independent era, Common 128
conscience or incompatible either directly or by necessary implication with any ordinance"706 and did not allow its codification yet it is used in administering justice between locals.707 This, one finds, undermines the state too.
Such structures also create and emphasise contradictions within the system, which then create opportunities for few agents at the expense of the majority. Archer’s work shows “international political culture (…) creates patterns of contradictions and complementarities that allow some political legitimacy claims to succeed and not others”.708 Such contradictions are created by the fact that some norms are accepted and others are not.709 These contradictions legitimise ruling classes that are not well positioned to engage the masses in a proper social contract. They also take serious critical junctures for granted, as they become mere epochs in continuing path dependence while devaluing the importance of internal epistemic deliberation and the role of expert knowledge in state building.
The importance of language in the operability of constructivism is telling in both case studies. In
Slovenia, the language of operation, culture and values synchronise to the deepest nuance with semantics of the processes of disintegration. Decolonisation on the other hand, operates with a language foreign to the culture, values and locally produced norms.710 It could not force through any well-meaning semantics, tending often to the advantage of the coloniser state. This limited the extent of norm empowerment and compliance in decolonised states.711 Mimicry of exogenous
took the little space the customary law had in national level underpinning. Jurisprudential understanding remains an unparalleled common and customary law with the former overriding the latter. 706 Harvey, W. B., 1967, pp. 244 707 Ibid 708 Finnemore M., & Sikkink, K., 2001, pp. 403 709 Kratochvil, F., 1989, pp. 45, 4 710 See Eckstein’s idea of Culture of politics: See Eckstein, H., 1988 711 Checkel, J., 1999 129
political cultures override speech-act obligation, human agency necessitated internal social construction of social action, which should fundamentally guide rules of legitimacy and laws of social interaction.712 While limiting social construction from within, internal agents such as local knowledge groups inadvertently become redundant and resort to working against state interest.
States like Ghana must “identify new ways in which agents can construct”713 social facts.
The dual legal system with an unparalleled overlap in which European statehood and Common
Law (with material inclination) are superior to chieftain systems and Customary Law (with social inclination) also makes it difficult to build a culture of political tradition and identity.714
We observe a distinct interpretation and use of law in the Ghana case. Traditional chieftains and use of Customary Law become prevalent in rural contexts while urban Eurocentric educated classes resort frequently to the European statehood and the dominant Common Law jurisdiction.
This is another reason why people may retain a “disengaged” relationship with the state in
Africa.715
Aside from colonialisms and their normative biases, the “social and cultural systems have elaborate blood-ties, religious, and traditional values, that are differentiated from each other by historical and linguistic differences fortified to maintain certain important vested structural interests”.716 This makes it difficult for people in Ghana to “respond to European-type statehood.
Loyalty to European-type statehood further reduces when the state views the destruction of traditional systems instead of developing them, as prerequisites to national unity”.717 It becomes a
712 Kratochvil, F., 1989, pp. 26 713 Finnemore & Sikkink, 2001, pp. 403 714 Interview with Gyampo, R., Sept. 2014 715 Baker, B., 2000 716 Proehl, P. O., 19667, pp. 280 717 Proehl, P. O., 19667, pp. 280 130
stubbornly nested path dependency similar to Koivisto’s postulation on Nordic countries’ welfare systems’ resistance to change.718 However, this one is nested in a self-destructive colonial rationale. This means critical junctures become merely symbolic epochs and a subtle colonial path dependency continues.
We realise that legal normative properties such as state sovereignty, which according to Kelsen's normative deliberations must lay with the highest belief in the law,719 are placed in material factors like a military force in Ghana.720 We observe that efforts to regionalise governance and negotiate new norms for doing so within social and ideational contexts that fit with indigenous rights and legal structures721 remain hypothetical as the material vested interests are of high stakes and regulated within the legal hierarchies. The system remains a “synthetic tapestry of government, artfully contrived”722 to work superficially. “The only signal is if the fabric is torn”.723 Thus, unless a critical juncture is more than ‘epoch of celebration’, the structure of governance remains transient.
To conclude, we find that normatively, we can only deduce that there exists a European body politics in Ghana, next to the African chieftain system with both incapable of integrating. Baker and other Western Africa Scholars argue there exists a certain tendency for the masses in Africa to “escape and disengage”724 with politics due to corruption, nepotism and other socioeconomic factors. However, this research finds that such disengagements sit in the irreconcilable norms, and the dual normativity that characterises this ‘European realities on African soil’.
718 See Koivisto, M., 2014 719 Kelsen, H., 1952 720 Poehl, P. O., 1967 721Poehl, P. O., 1967, pp. 278 722 Proehl, P. O., 1967, pp. 278 723 Ibid, pp. 278 724 Baker, B., 2000 131
After analysing the normative changes in the two cases, it is important to situate them in the changing normative approaches in the international system to illustrate the relevance of the theoretical inference to the empirical cases. This will be done by tracing the transitions of the dominant approaches that inform the norms the system diffuses into the domestic legal and political affairs of states outside the core jurisdictions. The study will go on to look at their implications in governance and diversity management before moving to the inference on the important actors. The last Chapter will present the conclusions we draw from the research.
Normative Transition: From Material Interests to Constitutional Rights Protection What role did the shift from political power to human rights approaches in the international system725 play in these cases? There are several lessons in this research regarding how states resort to international law. Decolonisation could not fully utilise social and ideational power because of the internal dual normativity and other factors analysed above. On the external front, a clear material division of power between the communist East and the capitalist West affected how decolonisation complied with norms diffused from the international arena. Disintegration on the other hand, took place in a time when social explanation of power and shift to focus on human rights norms was taking hold in the international system.726 It was also the time constructivist ideas were affirming themselves on the international system. Ideas were, hence, able to contend with socialist path dependence at the critical juncture of disintegration. Socialism faced challenges of legitimacy with its collective state ideals because individual self-determination largely came to determine the meaning of sovereignty.727
725 Wendt, A., 1989 726 Duxbury A., 2011; Klotz, A., 1995 727 González Villa, C., 2015 132
As “lawyers and international institutions created new social facts to consolidate and formalize the international system”,728 descending social norms fast replaced materialist ones.729 Human agency drove the construction of a new paradigm as rights protection activists made steady gains.
International legal norm debates between proponents of the humanitarian rights protection (social and ideational) and those in favour of (material) sovereignty ensued.730 As will be discussed in detail later, the Slovene Spring delivered one of the most contentious interpretations of the UN
Charter.731 The central government of Yugoslavia and the Slovene Republic government engaged each other in the interpretation of Article 2 (4) and Article 1 (2). The Federal government argued
Article 2 (4), emphasising that “all members shall refrain (...) from the threat of use of force territorial integrity or political independence of any other state…”. The Slovene Republic argued
Article 1 (2) emphasising “…principles of equal rights and self-determination, and to take appropriate measures to strengthen universal peace”.732
The federal government maintained Yugoslavia was a sovereign state, therefore, the basis of all arguments should lie in Article 2 (4) and hence, non-interference, but the Slovene Republic government had international support, arguing Article 1(2) from a human rights standpoint.733 This clearly shows a shift from a rigid material interpretation of sovereignty and an enmity posture of international affairs.734 The North Atlantic Treaty Organization (NATO) would at the latter stages
728 Finnemore M. & Sinnkink, K., 2001, pp. 402 729 Peter, P., Editor, Mladina, weekly interviewed 24th July 2014, Ljublina 730 See Wendt 1999, pp. 23 for the theoretical aspect and Trbovic, A., 2008, pp. 331, for an empirical enactment of this debate. 731 Trbovic, A., 2008, pp. 6 732 See UN Charter; Trbovic, A., 2008, pp. 331 733 UN Charter, Article 1 (2): “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. UN Charter Article 2 (4): “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any states or in any other manner inconsistent with the purpose of the United Nations” 734 See Wendt, A., 1999, 133
of disintegration, cite human rights protection and humanitarian reasoning of Jus ad Bellum (legal use of force for humanitarian reasons) to intervene in Yugoslavia.735
The focus of the international system continues to lean towards constitutional rights. However,
“most materialists believe a fundamental fact about society is the nature of the organization of material forces; that the effects of ideas are secondary”.736 The five recurrent factors in materialist discourse – “(1) human nature; (2) natural resources; (3) geography; (4) forces of production; and
(5) forces of destruction”737 – remain important, but are increasingly becoming secondary to social and ideational approaches. They all mattered during the Cold War, disposing the system “towards aggression and threat”738 as major tools of persuasion. It is commonplace now to juxtapose material power with ideas as causes of any outcome.739 The case studies add credit to the argument that material forces like military power, if indeed still relevant, have become accessories to ideational ones. Slovenia succeeded largely to avert war. Ghana proves that though geography is often causative (in the sense that states lying furthest to the core jurisdiction tend towards conflict), the state, with enormous material determinants such as natural resources, was still able to retain ideational approaches in the face of serious material power of the coloniser state. We could also argue that being up against such bigger hegemonic powers ideational approaches were the only options in both cases.
Nonetheless, in Marko’s underlying facts on the model of states, ideational approaches have ways with which smaller states formation takes hegemonic encounters into consideration.740 In both cases, two of the three concepts of state and nation building Marko posits help us recognise the
735 Trbovic, A., 2008, pp. 331 736 Wendt, A., 1999, pp. 23; See also Lichbach, Mark., 2003 for a complete Materialist perspective 737 Wendt, A., 1999, pp. 23 738 Wendt, A., 1999, pp. 23 739 Wendt, A., 1999, pp. 23-24; Finnemore M., and Sikkink, K., 2001, pp. 403 740 Marko, J., 2006, pp. 504-505; Schmidt, A. Vivien, 2010 134
primary importance of the transition from material to ideational approaches. The first is the framing of three normative principles within the French model of a state–nation: the idea of
“popular sovereignty,” entrenched in the 1787 revolution, the idea of strict individual equality before the law and the state’s ability to defend itself against hegemonic powers. The second is the
German model of a nation, which expects homogeneity of a “people” and a common language.741
Factors within these approaches have evolved to the extent of playing different roles from state building to the management of diversity742 to addressing security questions.743 This is continuing to evolve, championed recently by human rights protection norms and regimes, and institutions built to accompany them.744
Current trends show those who believe “the most fundamental fact about society is the nature and structure of social consciousness propelled by an agency and built on the distribution of ideas and knowledge”745 may prevail. Though material issues like war still dominate discussions, growing small pockets of human rights defenders show that as ideas become “structure shared among actors as norms, rules or institutions, social structures matter in various ways such as constituting identities and interests, helping actors find common solutions, defining expectations for behaviour and arresting threats”.746 As we shall see in next, changes in global governance structures and emerging diversities constrain ‘threat’ and make way for ‘persuasion and learning through socialisation as vehicles for compliance with norms.
741 Marko, J., 2006, pp. 506 742Žagar, M., 2007 743 Katzenstein, P., 1996a 744 Cardenas, S., 2014 745 Wendt, A., 1999, pp. 23-24. See also, Galbreath D. J. and McEvoy, J., 2013 746 Wendt, A., 1999, pp. 23-24 135
Implications in Governance and Diversity Management
The first and most important thing to look at in the implications of the changes from material to constitutional rights regime is the institutionalisms the states will tend towards after critical junctures because the institutions come to embody those changes. If we look at the various types of institutionalism addressed in the introduction and under normative readjustment at critical junctures (pages 87-88), the two critical junctures, lead to rational choice and sociological rather than historical institutionalism because of efforts to break from certain political traditions.
Rightfully so, we find that self-organisation, individual cognition and collective decision-making leads disintegration towards sociological institutionalism. Normative distortions and lack of an existing template, resulting in a pervasive conflicting colonial path dependence creates rational choice institutionalism in decolonisation because actors use institutions to maximise their utility as certain rules constrain the actors.
The birth of Slovenia out of the disintegration of Yugoslavia shapes an understanding of rights protection and the decolonisation of Ghana shapes a material understanding. The latter not because of its nuances, but because it takes place during a material interpretation and immediate interest dominated international regime. However, it is important to understand how ideational factors competed at that time. Factors such as economic sanctions and border control were particularly important and considered some of the most effective norm diffusion mechanisms. These affected any opportunity to grow and nurture the texture of “constitutional values based on their own ontological consciousness to define the terms and conditions that legitimise governance in their societies”.747 The arbitrarily drawn borders, which reflect the material interest of colonial powers, usually set the stage in a country like Ghana for internal belligerence and random armed regime
747 Soltani, F., Jawan, J., and Ahmad Z, B., 2014, pp. 155; Reus-Smit, C., 1999a 136
changes.748 Conflicting normative posture and material focus in such complex ethnically heterogeneous states further away from the core state jurisdiction have such tendencies.
Reflecting these on the international level, we realise that some of the main norm creation and international standard-setting actors are involved in stifling ontological changes for defining the terms and conditions for legitimising governance in Ghana. As asserted earlier, the posture of international norms at the time of decolonisation being strictly material reduced the role of knowledge groups to achieving normalcy and security. Essuman noted that questions and contradictories surrounded the role of Britain as the coloniser state and a normative standard- setting power, which he thought, for a country like Ghana, creates an ‘anomaly’ in international relations discourse.749 These contradictories and their ensuing anomalies force certain international relations choices and constraints on decolonised states. For example, many African states chose socialism after independence to disengage with their Western colonisers.750 For the East, the condition (and reward) for this, was an ideological conversion to socialism.
In the search for ways to survive the materialist international system of that time, many states aligned either with the East or the West. Some of the important roles constructivism played was to push for social and ideational normative understanding of the international system,751 creating a shift away from use of force, which continues to persist in the international system. This in turn, helps us understand the interpretation of, and the role of norms in governance. However, states that are still lodged in material posture in this ideational era, show that material and ideational interpretations are not entirely mutually exclusive. They could be two sides of the same object or phenomenon. It seems they have always coexisted within the modern state system, however, ideas
748 Adekeye A. & O. D. Rashid, O., D., 2004 749 Essuman, A. J., Interviewed, 16th October 2014, Accra 750 Ibid 751 Brglez M, and Brinar, I., Interviewed 16th and 18th July 2014, Ljubljana; See also Wendt, 1989. 137
are yet to completely assert their dominance over material norms as material ones have done since the treaty of Westphalia.
Material interests are forced through whereas actors socialize into ideational ones like rights protection norms, though the latter sometimes with persuasion. Slovenia in a sense embodied an empirical case of rights protection when it successfully argued individual self-determination and domestically used ideational approaches to assert its sovereignty. Therefore, we use Ghana to analyse the rest of this subchapter to gain a critical perspective on how critical junctures that happen in material regimes affect governance and diversity management.
The first crucial point is distance. As international law is not enforceable like domestic laws, socialisation and persuasion is an important tool of compliance752 in norm diffusion in the international system. Therefore, the furthest the state is from the core jurisdiction, the more the importance of distance in compliance. However, the research finds distance was not the main issue.
Ideational approaches such as rights protection norms, often need home grown ontological deliberations to re-situate debates in intuitional cultures deemed appropriate for the interests of the state. A lack thereof leads to an ontological conflict within which the system must manoeuvre constantly as we analysed in the dual underpinning of the decolonized states’ legal system.
Furthermore, the state inherits a concept of law that is largely hierarchical and authoritarian.
From a constructivist point of view, instead of an enabling effect, the state propagates a constraining effect, which stifles governance and institutions. This makes it difficult for decolonised states to disseminate ideational norms. It leads them to understand only the material enforcement of norms, laws and interests. They, as such, often exhibit hegemonic tendencies such
752 Brunnee J., and Toope, S., 2012 138
as arming the state without a defined threat in sight, which basically ends with conflicts within their own borders. The fact that the era in which the independence took place propagates material interpretation of norm diffusion and compliance further enables the suppression of any ideational and social interpretation of norms the state may be capable of. Although ideational and rights approaches currently dominate international norm dissemination, the research finds the lack of an own ontological deliberation on governance from within the state, keeps its outlook on material interests. States that only understand material interpretations of norms in constitutional rights normative regimes are likely to find themselves in internal conflict situations unless they are big powers who can use such material force to archive their interests.
Nevertheless, as often actors can be socialised into a normative set up,753 such states are likely to adapt to human rights norms and institutional behaviours. Strang and Soule claim that as the dynamics of the processes are in continuum both domestically and internationally, the state will have no choice because “norms of progress mandate that old wine be placed in new bottles”.754
The debate seems to be going past whether or not material interest based norms matter. Current contestation debates755 show that since norms evolve continuously, collaboration756and
Cohabitation of norms757 become necessary regarding the working of rights-based approaches.
Žagar proposed, for instance, approaches within diversity management discourse such as the rights of national minorities within and between states relations, which sustain rights-based normative approaches.758
753 Risse, T., & Sikkink, K., 1999 754 Strang D., and Soule, S., 1998, pp. 278 755 Wiener, A., 2016 756 Keohane, O. R., 2014 757 Brunnee J., and Toope, S., 2012 See also Reus Smit, 2004 758Žagar, M., 2011 139
From a non-core states’ perspective, a primary prevalence of rights protection approaches is that they become state building tools in the long run. They are used for spreading democratic values in non-democratic states; however, their use is still juxtaposed with the use of force. As the role social facts play deepens in state building outside the core state jurisdiction and constructivist explanations – which, are far more removed from geopolitical interest and attached to ideas, culture, causality, structure, agency, identity and constitutive take effects, social explanation of power – will become prevalent and the threat to and use of force will lessen. Social explanation of power is also likely to create new constructs and jurisprudential logics shaping actors’ interests, self-understanding, and behaviour in different ways759 that come to reflect directly in governance.
At the domestic level, Žagar stresses their effectiveness in internal matters such as minority rights.760 At the international level, Finnemore, and Sikkink stress that norms and ideas are showing “their effectiveness (…) in areas like foreign aid, opposition to slavery, piracy, trafficking in women, science policy, development, racism, and laws of war”.761
The need for a new understanding of the role of social facts points to the relevance of epistemic communities, because they are capable of creating and spreading norms and values.762 If the role of epistemic communities in such times of normative disarray as these critical junctures gets the needed attention, their relevance and implications in governance would resolve certain legal and policy mysteries. Their involvement in governance creates what Carayannis et al calls the sciencetization of governance, which means a transformation from “political governance to knowledge (epistemic) governance".763 An effort to understand the epistemic communities’
759 See Katzenstein P., 1996a 760 Žagar, M., 2011 761 Finnemore, M. & Sikkink, K., 2001, pp. 396 762 See Haas, P., 1992 763Carayannis, E. G., Pirzadeh, A. Popescu, D., 2012, pp. 648 140
concept and their possible roles in the cases will follow in the subsequent subchapters before the study’s overall conclusion.
Epistemic Communities – Empirical Analyses
This research has so far in various ways, pinpointed, argued and analysed how various knowledge groups, and their works and their agenda-setting influences affected independence as a collective agenda. We frequently rather used the term ‘knowledge groups’ in reference to these actors and did not resort to referring to them as epistemic communities because Haas himself “failed to produce an approach that is capable of accommodating a multiplicity of actors, epistemic and non- epistemic, who at various junctures influence norms, decisions, decision-makers and one another”.764 In the case studies, what helped us to distinguish them so far from other expert groups was the fact that they have no “brand of specialized interest” in the issues765and their aims are
“non-material”.766
Unlike scientists, epistemic communities do not serve the interests of economic and political actors. They are more in tune with overarching interests in governance. Furthermore, scientists mostly seek new knowledge to transfer to practitioners to affect material production while epistemic communities engage with the essence of scientific cognition, and how that affects law and policy guiding structures of society and the material production forces. Epistemic communities are also able to use their shared vision of knowledge to address normative issues in global laws, politics and economics. The Pugwash Movement and how it engages prominent scientists is an example of a transnational epistemic community positioned as a “community of technical experts
764 Dunlop, C., 2000, pp. 1 765 Ibid, pp. 2 766 Ibid, pp. 2 141
engaged in policy-oriented studies in the field of (…) arms control”.767 Their involvement in the case studies practically sciencetizes the governance processes, transforming them from “political
(…) to knowledge (epistemic) governance".768
The new state of Slovenia’s various knowledge communities situated “pressure for political pluralisation from grassroots”769 in national sovereignty debates and de-federalisation of the socialist federation Grgic has called “ethnonationalistic”770. The various groups grew their influences “from social movements to sovereignty”.771 Tonci Kuzmanic called it “the new social movement ideology,” identifying two distinct communities as in opposite directions: the “not so
Independent-Trade Unions” and the “Independent Trade Unions,”772 a very influential one being the organisation of Slovene Journalists, which will later be critical at the point of disintegration.773
The emergence of the various knowledge communities in Ghana’s case, with the resolve to implement self-rule, garnered within the wider British Empire involved various intellectuals and technocrats from different parts of the empire. Hobsbawm points out that with skin colour being their only basis of state legitimacy, every other political effort was built on relatively the same colonial administrative order.774 Hence, the importance of human agency as asserted above. We also see that Pan-Africanism was not just “political but also an emotional movement”,775 often tainting the rational pursuit of securing legal and policy structures. Ghana became a test case for epistemic collaboration that spanned three continents – Africa, Europe and North
767Smirnova, M. Y. and Yachin S. Y., 2015, pp. 648 768Carayannis E. G., Pirzadeh, A. Popescu, D., 2012, pp. 648 769 Mastnak, T., 1992 770 Grgic, G. 2017 771 Mastnak, T. in Benderley, J and Kraft, E. 1994 pp. 97 772 Kuzmanic, T; in Benderley, J and Kraft, E. 1994 pp. 159 and 160 773 Kuzmanic, T; in Benderley, J and Kraft, E. 1994 pp. 159 and 160 774 Hobsbawm, E., 1990, pp. 67 775 Page, M. E. and Sonnenburg, M. P. 2003, pp. 454 142
America/Caribbean – all with the goal of contributing knowledge, expertise and ideas towards self- determination and sovereignty. As would be discussed later, it had to start from within the coloniser-states with vast geographical width. The 1945 Pan-African Congress in Manchester (and the previous ones in London, Paris and New York), which brought together scholars from all three continents, gained the reputation as the pacesetter for decolonisation in Africa and the British West
Indies, marking a significant advancement in the participation of workers in decolonisation.776
One may argue their agenda setting and guidance for self-determination, independence, sovereignty, national discourse shaping, all of which are far from being personal or immediate interest aims, show they are indeed in various ways, epistemic communities. However, that is only on the domestic level. On the international level, if we look at the current progressive norms –
“good or nice norms”777 – within the human rights normative agenda setting, as both liberal and constructivist would argue them, other expert groups resort to immediate interests such as project objectives within governmental development agenda or scientific research to prove or debunk existing beliefs or practices. However, the perceived epistemic communities, “who at various junctures influence the norms, decisions, decision-makers and one another”,778 like at gatherings such as the Pan-African Congress of Manchester or at the Nova Revija, take actions that are in line with progressive human rights normative agenda setting.
This focus on progressive norms and overarching social interest as opposed to immediate interests also makes the parameters of the definition of the concept problematic. Its focus becomes too positivist and non-critical. Haas and Adler defined the concept in its current meaning in the late
1980s and early 1990s. Just like constructivist analytics, it also has roots in Foucauldian discourse,
776 Ibid, pp. 454 777 Finnemore, M., & Sikkink, K., 2001, pp. 403-404 778 Dunlop, C., 2000, pp. 2 143
which shows the concept’s elaborate dialectical approach comes with inherent empirical difficulties.
Haas contends that:
In focusing on the international or domestic power in their explanation of policy coordination, many
authors ignore the possibility that actors can learn new patterns and may consequently begin to pursue
new state interests. While others mention this possibility, few investigate the conditions that foster a
change in state interest and the mechanisms through which the new interests can be realized.779
This is not too different from what happened in the transitions to independence in the cases. Here, the causative influence, shared values, the extent of their role in normativity and new ideas injection at the critical junctures, depict a clear pattern of significance in shaping norms, values and policy coordination rationale.780 However, this influence has not been significantly studied on the domestic level. Epistemic communities’ roles in the cases reveal that with deep normative commitments and strong epistemological and methodological positioning, the extent of their influence in domestic normative reconstitution has been grossly underestimated.
The disintegration case demonstrates a stronger independent normative commitment internally.
The core of the normative commitment in decolonisation remained in the norms of the colonizing state mainly because the post-independent norm was practically only the localisation of international agenda with local epistemic deliberation situated only in seeking normalcy and still searching for space for ontological deliberation on governance. Their control over the production of governance knowledge in the Slovenia case, and steering the knowledge in the necessary directions, as well as framing issues for collective debate, enabled the groups to articulate the cause
779 Haas, P., 1992 pp.2 780 Haas, P., 1992 144
and effect relationships and legitimise disintegration. Easy access to each other in Slovenia seems to help their case but Ghana shows distance between them does really matter.
Mapping their beliefs, causal influence, study of early publications of different community members in the two cases, archival materials and testimonies, speeches, biographical accounts, and interviews were studied as Haas prescribes.781 This helped to ascertain the extent to which epistemic beliefs masked social construction and conditioned human action. The judicious use of secondary literature regarding the intellectual history of different disciplines from which the groups derived their understanding provided context for how far knowledge and expertise steered independence and self-determination. We realised that when uncertainty looms, epistemic communities provide raison d’etre for states’ coherence because theoretical acumens become tools for legal and policy normativity pushed through with human agency,782 which “lies at the interstices between systemic conditions, knowledge, and actions on the national level”.783
Few studies investigate the conditions that foster a change in state interest and the mechanisms through which the new interests are realised.784 We find that because core states, which are models for studying state behaviour have long enduring stability and do not frequently face such uncertainties, scholars do not engage much in the study of the texture of critical junctures and how they transfer knowledge and ideas.785 The epistemic community model provided us ways to understand agency, which is at the heart of infusion of new ideas in polity formation.786 An existing template that dates back to Roman Empire Europe787 ensured epistemic work in Slovenia had a
781 Haas, J., 1992 782 See Smirnova, M. Y. and Yachin S. Y., 2015; Dunlop, 2008 and Dunlop, C., 2000 783 Haas, P., 1992, pp. 2; Haas, P. M., 2016, pp. 5; See also Haas, P. & Adler, E., 1992 784 Haas, P., 1992 785 Koivisto, M., 2012 786 See Wollmann, H., 2012, see also Carayannis E. G., Pirzadeh, A. Popescu, D., 2012 787 Rogel, C., in Kraft, E. and Benderley, J. 1994, pp. 4 145
basis, hence a lessened influence of agency. Such communities in the Ghana case on the other hand with an antagonistic structure and non-existing template, relied mostly on agency. We realise that in both cases opposition to independence was quickly swept off. Both those who argued in
Ghana’s case that indigenes were innately unfit or not yet ready for self-rule, and those who believed in socialism’s transition to a communist utopia in Slovenia’s case, lost support for their arguments.
After giving these evidences, the next subchapters will address epistemic communities in the independence attainment in both cases before making efforts to answer the question of whether or not they were really epistemic communities.
Epistemic Communities: Empirical Analysis in Slovenia
Epistemic influence, primarily generated by Slovenian intellectuals, can be traced in Slovenia's involvement in the formation of Yugoslavia right from the beginning in the 1940s. Slovenian intellectuals Edvard Kardelj and Boris Kidric, and the Montenegrin Milovan Dilas, provided the theoretical acumen that instituted what many saw as a viable socialist alternative distinct from the
Soviet model. They gave Yugoslavia its theoretical and ideological foundation.788 The workers’ self-management system gave Yugoslavia admirers among Western democratic socialists who saw that experiment as a path to a more humane socialism.789
Their succinct Marxist critique of defects of the Soviet Union, accusing it of holding too much influence, imposing its hegemony across the East, behaving imperialistic and resembling Western capitalism, opened socialism outside of Europe and the West, and made the federation a leader in the Non-Aligned movement. At that time, "they demonstrated there could be a third-way between
788 Robertson, J., 2017 789 Robertson, J., 2017 146
the capitalist United States and communist Soviet Union".790 As one of only two communist movements aside from the Albanian partisan to come to power without Soviet assistance in Eastern
Europe, Yugoslavia was determined to remain loyal but resist Soviet control. When it was eventually expelled from the Communist Information Bureau in June 1948 for providing aid to
Greek Communist rebels, these theorists refined and revised their views on state socialism. Dilas argued the Soviet Union was a "state capitalist system in which bureaucratic castes exploited workers and peasant classes”, hence not a proper socialist state. To them "the system bore striking similarities with the Western Keynesian-inspired monopoly capitalism".791
Slovenia provided a similar spirit for the disintegration of the federation. The workers’ self- management system, one of the backbones on which these theorists built the Yugoslav communist idea, had been in crisis as the various Republics slowly criticised it and broke away by spreading nationalist sentiments.792
In 1949, after severing ties with the Soviet Union, Edvard Kardelj explained Yugoslav socialism as an idea that would reform and "give the masses greater inclusive power"793 in this process of
"withering away of the state"794 to centralise the role of the worker in state machinery and decision making in the workplace. When the National Assembly passed the legislation in June 1950 requiring all state enterprises to democratically elect 15 to 120 representatives for a two year- terms, they did not realise such an empowerment measure could effectively be rationalised as a disciplinary measure.795 The coercive instruments that set Yugoslavia apart from the Soviet Style fast industrialisation and collectivisation meant difficulties in transfer of authority from top to
790 Ibid 791 Robertson, J., 2017 792 Whitehorn, A., 1978 793 Robertson, J., 2017 794 Ibid 795 Ibid 147
bottom. It also took away the urge to compete across industries and with the outside world. While it made Yugoslavia dynamic and popular across the world, it failed to turn profits. By the 8th year of implementation, the miners’ strike of winter 1957/8 started the discontent with the workers’ self-management system, climaxing with mass student protests in 1968.796 The internal conflict dynamic of this decentralisation plan also emerged. Because the north western Yugoslavia came into the federation with a relatively developed economic and production prowess from the Austro-
Hungarian Empire, south eastern Republics felt only a centrally planned economy with clear plans of subsidising them can redistribute resources for them to catch up and solve the disparities between them. However, the north westerners felt the southerners demand for central planning sounded like the Soviet system.797
With such internal divisions, Slovenia as a north-west-most Republic, was clearly in the position as one of the much-industrialised Republics to pursue a new agenda. This time again, it was led by similar intellectual and expert support to abandon the communist ideology. The 1974 constitution granted them further freedom to do so. By 1989, when the Workers’ self-Management
System was completely abandoned, the “legacy of Yugoslavia had come to focus on how the state was internally conceived” by ideological theorists.798
Epistemic communities directly affect issues by framing them for inter-state international peace discussions, decisions and policies, and there exist similar traits with the knowledge and ideas that affected the formation of Yugoslavia and its disintegration, particularly the formation of
Slovenian. We identify here a “shared set of causal and principled ideas coupled with common knowledge base and policy goals”.799 Those who led the founding of Yugoslav socialism in the
796 Ibid 797 Robertson, J., 2017; Whitehorn, A., 1978 798 Robertson, J., 2017 799 Bloodgood, E., 2008, p. 2 148
1940s like Edvard Kardelj and those such as Janez Janša, Franci Zavrl and Sergej Kraigher, framed agendas for national implementation, rallying mass support and getting these agenda to clearly become or directly affect laws and policies. This offers them a place in Haas’ definition of epistemic communities.800 However, let us address the details of the eve of independence before drawing any conclusion.
The Nova Revija gathering, the formation of the Odbor, Neue Slowenische Kunst (NSK) (New
Slovenian Art), “Nova Revija Magazine, The Association of Writers, the Sovereignty movement”,801 etc., all ensured there were conscious attempts to formulate local meaning for the new Slovenia, properly situated in locally generated norms through intellectual and epistemic influences.802
The deliberation on seeking a new normative approach started with seeking new social expressions. Epistemic conditioning and constitutional legitimisation followed, in order to rally both the ruling class and masses in the Slovene Republic. The lack of consensus at the April 11,
1991 meeting of all leaders of the various Republics widened the political distance further between the leaders, especially between the Slovene Republic and the central government.803 Dynamics such as the Serbian Republic’s Communist Party support for the federal government also emerged, but much had already happened before that. By then, Slovene political rhetoric came to resemble that of a liberal democracy, and they were determined to pursue a “constitutional separation”,804 especially, after the arrest of “the four of Ljubljana”.805 However, the question was how and who was going to make the determination socially transformable and acceptable?
800 See Haas, P., 1992; Bloodgood, E., 2008 801 González Villa, C., 2015, pp. 58 802 González Villa, C., 2015, pp. 58 803 Janša, J., 1994 804 Brglez, M. and Brinar, I., Interviewed 16th and 18th July 2014, Ljubljana 805 See González Villa, C., 2015 149
The process in Slovenia reveals a deep existing legal and policy tradition that was side-lined for the socialist rule, and somehow waiting to be revived. The actors with the relevant interpretive knowledge and ideas capable of transforming this determination and making it acceptable were not hard to find. Conventional analyses of the Slovene Spring do not pay much attention to the texture and epistemic influences, and their underlying authority over legal and policy constructions. We see here how such epistemic works helped draw the line between the two competing thoughts in the debate leading to disintegration to become clear.806
Various such groups contributed to the process of legal contextualisation of independence declaration. A decentralised post-1974 constitution and Tito’s death made Milosevic’s original plan of stepping into Tito’s shoes impossible and forced him to adopt a second plan of consolidating as much territory and influence for Serbia as possible.807 As a phenomenon that arose from “Serb nationalism among Belgrade intellectuals in the mid-1980s, (…), other Republics suspected Milosevic’s conscious use of nationalism as a vehicle to achieve power, and to strengthen his control first over Serbia, and then over Yugoslavia”.808 Slovenes knew it had to be countered with new ideas, but had to be used differently compared to in Serbia.809 Unlike Serbian intellectuals, their Slovene counterparts rather appealed for international support.
In the process of shaping Slovenia’s legal ‘persona’ to exist outside Yugoslavia, allowing the formation of political parties may have helped to cement the assertion of sovereignty. This led to the brief military standoff between the Yugoslav National Army (JNA) and the Slovene Defence
806 Cohen, L., 1993, pp. 233-234 807 Silber, L., Little, A., 1997 808 Silber, L., Little, A., 1997, pp. 25 809 Kranjc, interviewed 22nd July 2014, Ljubljana 150
Forces.810 They took advantage of the “flourishing dissident”811 works to promote full epistemic influence. The discourse on individual liberty as a right to self-determination and opposition to rigid territorial integrity kept growing in Slovenia after the Nova Revija gathering. Both approaches are within the UN charter812 but individual self-determination gained more support and attraction as territorial integrity protection increasingly reduced.
According to Lang, the collective interest of the federation had waned and various groups armed primarily with ideas and ready to put new social facts into the public domain could do a lot.813 It began with what Julasic calls the “the politics of anti-politics”, which practically meant a situation whereby traditional politicians had to give way to other actors.814 Lang and Hardi pointed out that intellectuals, writers, journalists, students and various experts, including artist collectives within
Slovenia, adopted similar strategies.
Influential and politically active artist collectives and activists attracted both positive and negative attention. While some thought they evoked memories of WWII for controversy, others thought they were a necessary social force to help assert independence and self-determination claims. As the anti-socialist momentum gathered, they aimed and attacked the non-viability of socialist rule rather than the state or individual elites. They criticised individuals only when there were reasons for that.815 For example, the Federal Defence Minister, General Mamula's efforts to sell weapons
810 Rupel, D. in Benderley, J and Kraft, E. 1994, pp. 186; Trbovich, Ana S., 2008; Silber, L., Little, A., 1997 811 Rupel, D. in Benderley, J and Kraft, E. 1994, pp. 186 812 Article 1(2), states that one of the purposes of the United Nations is the following: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. UN Charter Article 2 (4): “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any states or in any other manner inconsistent with the purpose of the United Nations” 813 Lang, A., Interviewed 18th and 22nd July 2014, Ljubljana 814 Julasic, V. in Benderley, J and Kraft, E. 1994, pp. 150 815 Hardi, M. and Lang, A. Interviewed 18th and 22nd July 2014, Ljubljana 151
to Ethiopia at a time Ethiopia faced famine, and a news article about his luxury villa, was used to discredit the minister and the federal leadership.816
In 1991, these groups took advantage of the stalemate of the April 11 meeting of the presidents of the Republics. Another inherent factor of the communist idea, which played into the hands of knowledge communities, is the idea of a future cornucopia. While the masses of Yugoslavia were supposed to wait for it, rival ideologies lived their benefits in present times.817 These knowledge groups did not shy away from pointing these out. In bits and pieces, they shaped their own understanding of self-determination and slowly dismantled the fabric of the Communist League.
Janša, for example, published an article in Mladina Magazine in 1985, suggesting compulsory military service be reduced. This angered the JNA and shifted focus towards ideas of attaining independence with nonviolent measures.818 One would be forgiven for having difficulties imagining it is a coincidence that Janša, who is a Defence Studies graduate, after such an influential article criticizing Defence apparatus, would later hold this same ministerial position prior to and through independence.
As analysed earlier in the normative change inference, in the same territorial defence vein, the case of Yugoslavia led to an empirical interpretation of two Articles of the UN Charter.819 While
Slovenia argued individual self-determination with Article 1 (2) of the Charter, the federal government argued Article 2 (4), calling the support the international community gave to individual Republics an intent to undermine a sovereign state rather than support groups of people within the states seeking self-determination.820 The two sides remained contentious in their view
816 Petrovic, Mladina Magazine, interviewed 16th July 2014, Ljubljana 817Ramet, S., 1992, pp. 29 818Janša, J., 1994; Ramet, S., 1992, pp. 29 819 Trbovic, A. 2008, pp. 331 820 Trbovic, A. 2008, pp. 331; Denitch, B. 2008 152
until the brief conflict ensued.821 In Kellas’ view, Article 1 (2) preceded 2 (4) and was hence prioritised in the UN Charter.822
The sovereignty and territorial integrity argument, which had strong support during the decolonisation processes in the 1950s and 60s, now suffered a legitimacy misfortune because
Europe seemed to head to a mixture of “soft-sovereignty” with the EU as a possible supra-state.823
According to Bucar, some groups within Slovenia could already see a future Slovenia within the then European Community. It became apparent a new future was being shaped on the Eastern EU borders, and many elements within Slovenia were eager to be part of the EU.824
Proponents of the state of Yugoslavia at that time held on to the idea that legal personas of international law are sovereign states and not individuals or autonomous Republics within the states. This argument was rendered obsolete as long as the international community accepted the independence of a single breakaway Republic. One of the key first steps the Slovene authorities took was to move to secure their borders and as such, enforce the sovereignty of their independence.825 However, legality, respondents in the 2014 research generally agreed, was secured with the Brioni Agreement that ended the 10-Day War. As Slovenia’s first international agreement as a non-entity of the Federal Republic, signed vis-à-vis international bodies like the
European Community in July 1991, advocates of self-determination and dissident groups could see independence in sight.826
821 Kellas, J.; Nationalist Politics in Europe: The Constitutional and Electoral Dimensions ("group of people who feel themselves to be a community bound together by ties of history, culture and common ancestry”), 2004; Kellas, 1998, pp. 3 822 Kellas, J., 2004; See also, Kellas, J., 1998, pp. 3 823 Kellas, J., 2004 824 Bucar, M., Interviewed 17th July 12014, Ljubljana 825 Silber, L., A., 1996 826 Trbovich, A., 200, pp. 216 153
However, common ethnic inter-mingling created new challenges as opponents of the breakaway argue for an almost impossible legal situation, although less in the case of Slovenia due to the lower number of non-Slovene ethnics in that Republic. In Croatia’s case for instance, the central government wanted the rights of Serbs guaranteed within Croatia after agreeing to Croatia’ rights for self-determination. Although Croatia saw it as a bid to create a Yugoslav proto-state or enclave within its future independent state, it had to guarantee the rights of Serbs living within the state of
Croatia as Yugoslav citizens (e.g. Serb Republic of Krajina).827 Thus, after advocating for individual self-determination, the Republics had to take on the challenge of guaranteeing the rights of those of different ethnicities living within them. The rising prominence of natural law approaches, laden with humanitarian sentiments meant advocates of individual self-determination received international support while the central government continued to argue for sovereignty and territorial integrity within International Law.828
National sovereignty was less of the motivation behind the Slovene independence desire than individual self-determination and new policy and political directions.829 What makes that clear is the fact that it did not start with the political elite, political movements, trade unions, social groups, the masses or alliances among these groups. The agenda was shaped by learned communities, which were seen in the late 1970s as loose intellectual nationalist ideologues. Rupel maintains that their existence was somehow a compensation for the Slovenes’ lack of statehood throughout
Slovenian modern history; that they “produced a formidable amount of cultural institutions”830 to make up for lack of self-rule. Their activities shaped Slovenia and allowed their dissident works a role in state building.831
827 Trbovich, A., 2008 828 Trbovich, A., 2008 829 Silber, L., Little, A., 1996, pp. 48 830 Rupel, D. in Benderley, J and Kraft, E. 1994, pp. 186 831 Rupel, D. in Benderley, J and Kraft, E. 1994, pp. 186 154
The loose nature of such groups made it difficult for the central government in Belgrade to deal with them. The demands for self-determination was the only thing that was clear. The intellectual shape of the movement had only started with the Nova Revija832 gathering, and media attention began with the arrest of Janša in 1988, by which time the Slovenska demokratična zveza (SDZ) party formation had started to take shape. Other important persons like Spomenka Hribar, Tine
Hribar, and France Bučar, who all identified with Nova Revija, shaped the propagation of ideas different to socialist thinking. They used less political activities but sought to engulf the whole nation of Slovenes into it. However, such movements were wary of how the federal government might react because of its brutal crush of the 1970/71 nationalist movements in Croatia. Shaping new thinking was rather based on Slovenia's consolidated economic and enduring cultural successes. Similar actions in other Yugoslav Republics rather appeared as pure nationalist movements.833
As we see from the work of the state’s theorist like Edvard Kardelj and Boris Kidric, Slovene
Republic leadership did not completely buy into ideology as the only tool of legitimising the state, which would later play an immense role in the process of de-legitimation of the grip of Federal
Yugoslavia over the Slovene Republic.834 This is in line with Haas and Moravcsik’s acknowledgement that systemic conditions and domestic pressure impose or take off pressure and constraints on states’ behaviour (in this case an autonomous Republic within the Yugoslav federation). How the Slovene Republic identified its “interests and recognized the latitude of action
832 Ibid, pp. 50; Interview, 17th July 2014 Petrovic, P., Ljubljana 833 Ibid pp. 50 834 Laura S. and Little, A., pp. 159 155
deemed appropriate”835 was a function of the way those groups understood the problems and influenced law and policymaking under those conditions of uncertainty.
In this case, reiterating the distinction between the various contributors of expertise, ideas and knowledge to decision making is very important because the technical policy contribution analyses within a socialist context that was ideologically extremely tight-knit and somewhat oppressive, required enormous individual courage and variation of manoeuvring. Such a context also makes it difficult to differentiate and analyse them.836 Many intellectual movements have been connected to self-determination processes in Europe in the aftermath of WWII, but they have operated as entities within legally well-defined states receptive to their ideological lineages and not the contrary. In the Slovene case, the question is more than a mere effort to redefine an existing ideology. Slovenian groups had to work against the texture of the fundamental garment of the prevailing ideological norm.
To argue these groups as mere intellectual movements who voiced their concerns through different channels and not as epistemic communities influencing policy with technical expertise diminishes the various roles, they played in shaping the state and its laws and policies. However, taking to channels such as newspapers and music makes it feasible for one to argue they were mere social or intellectual movements. Publications such as Nova revija, Mladina and Teleks, had direct policy implications. The communities needed mouthpieces and these news outlets provided that, especially what became known as the Nova revija Circle.
The Republic of Slovenia saw them as serious policy influencing channels with the necessary influence, but it was important to sell them to the central government as actors that could not be
835 Haas P., 1992, pp. 2; See also Moravcsik, A., 1997 836 Denitch, B., 1994 156
taken seriously to avoid conflicts. The authorities in Ljubljana always downplayed the importance of the effect of these ‘experts’ when they spoke out against communist ideals and interests in the country.837 In this regard, we can trace the rise of those who had seemed as mere intellectual groupings into networks of experts with direct technical influence on policy and policy implications. For example, Franci Zavrl the then editor in chief of the Mladina Magazine, was arrested in 1988 for publishing the article titled "Mamula Go Home" referring to the Federal
Defence Minister and what the editor saw as his meddling in Slovenian “home” affairs. Another one labelled General Mamula as the “Merchant of Death” for selling weapons to Ethiopia when it was famine-stricken. The popularity of the former article resonated with Slovenes who longed to express the feeling of a separate Slovenian state, though they may not necessarily be nationalists.
The latter article gave Slovenia a position in the narrative of the then growing international Non-
Governmental Organisations (NGOs) scene that was bent on helping Ethiopia defeat the famine.
This also made some enemies for Belgrade in the West and many parts of Africa amidst rising
NGO dispositions towards anti-war sentiments.838
Such communities noted and used punch lines of the meeting point between self-determination and sovereignty. With their backing, the Slovene Republic authorities argued their need for self- determination and in the end, gained sovereignty. They took advantage of the fact that international discourse started to see the shrinking influence of positive law and the increased influence of natural law.839 Opposition and support from within took different forms. Key oppositions to independence included the communist party of Serbia and people within Slovenia who wanted socialist rule. Glücks noted conservative elements in Slovenia wanted independence but were sceptical of both socialist and the liberal democratic voices.840 These gave the central government
837 Denitch, B., 1994 838 Peter P., Mladina, 14th July 2014, Ljubljana 839 Trbovich, A., 2008 840 Glücks, Nenad, The Reporter Weekly, interviewed 22nd July 2014, Ljubljana 157
hope that there could be enough diversity in opinion, and possibly support within Slovenia and other Republics against anti-socialist tendencies. One would expect poorer Republics to risk facing the wrath of the central government except if policy planning was well in place, but the Slovene
Republic, the largest economic contributor did that while holding the possibility of violence at bay.
For the Slovene leadership, the David-Goliath look of the material power meant belligerence was not an option.
From an international perspective, it was a time the legitimacy of socialist ideology generally diminished. However, not all observers of the disintegration process agree that epistemic intervention played a decisive role. Some believed the anti-socialist movement in the West misconstrued the narrative of the events to favour the sovereignty movements within Yugoslavia and delegitimize socialism. Herman and Peterson point to “critical material U.S. support for
Croatia”841 to crush ethnic Serbs within Croatia, arguing for “an ethnic cleansing”842 of Serbs in the “course of a struggle to break up Yugoslavia”.843
Many observers grounded the legality of the Slovene move to declare independence first in the internal acceptance of independence. Secondly, when Milosevic joined the presidency, the rift between various leaders of the Republics grew further.844 Further evidence is that Croatia planned to pursue independence with Slovenia. However, the independence narrative had a wider acceptance in Slovenia than in Croatia. In Slovenia’s case, the legality and legitimacy of the state were made a priority rather than in Croatia, where President Tudjman was sucked into thinking about the possible reaction of the central government in Belgrade should he declare independence.
Belgrade sensed Croatia’s hesitation, but Tudjman, who had his own ministers disagreeing with
841 Herman, E. S. and Peterson, D., 2010, pp. 81-82 842 Ibid 843 Ibid 844 Silber, L., Little, A. 1996 158
him in a meeting with the Slovenes on when to declare independence had to go along, risking war.845
The role of these groups is evident in many ways. Denitch’s argument that Marxist ideas are generally unable to deal with nationalism846 combined with the role of such knowledge groups to help Slovenia. Unlike other Republics where nationalism steered anger, nationalism in Slovenia was channelled into the creation of “formidable cultural institutions”,847 which became a recipe for those epistemic successes.848
They had helped shape social, economic, cultural and political structures of the Slovene nation in a way that was no longer compatible with the structures and principles of socialist ideals. The large part of their job became how to help policymakers manage the shift from a centrally planned communist economy to a market-based one. The aftermath was characterised by public sector reforms and integration into a Europe-wide policy framework conducive to the state’s new ideals.
They faced questions of continuity, of copying the new models of re-traditionalising social discourse and innovation in the fields of employment as well as decentralisation and redefinition of centres of political power.849 This process is still ongoing with lags between different institutional initiatives.
Epistemic Communities: Empirical Analysis in Ghana
The influx of knowledge and ideas was perhaps a curse British colonial rule has had to deal with in West Africa from its beginning. After the United States, Canada and Australia revolted against
845 Silber, L., Little, A. 1996, pp. 26-27 and 83-86 846 Denitsch, B., 1996 847 Rupel, D. in Benderley, J. and Kraft, E. 1994, pp. 186 848Ibid 849 Bucar, M. 17th July 2014, Ljubljana 159
direct colonial rule from London, Britain thought a decentralised system far away from the French centralised one with fringed local participation would keep everyone happy. Colonial systems usually dehumanise their subjects while involving the locals in the process. More so in West Africa because scorching heat, high humidity and malaria prevalence meant very few Europeans lived there. These gave the people of the Gold Coast and other West African British colonies the space to be involved in governance and "start organizing their own government from the onset of colonial rule”.850
The colonial government was always reluctant to involve locals fully, but growing commerce and the lack of European presence forced them to increase locals’ involvement. The locals "realized that education was key to the power that Europeans (had over them). If the period was quiet, it was largely because Africa's young people were just beginning to think about and discuss the future of their countries".851 By the eve of independence in 1957, Africans in the Gold Coast seeking education went from 19000 in 1912 to 571000.852 A wave of "nationalism arose among the educated generation"853 and some of them will go on to study in the United States of America and other Western universities. Lack of a large presence of Europeans also meant a less likelihood of conflict over land as the case was in Southern Africa. It also meant “freedom to operate political self-organization".854 As “early as 1871, Africans in the Gold Coast had begun to organize their own kind of self-government".855 Political organisations such as Aborigines' Rights Protection
Society (ARPS) were formed and "in 1918, a prominent local Gold Coast lawyer, J. E. Casely
850 Hatch, J.1967, pp. 50 851 Ibid, pp.50 852 Ibid, pp. 49 853 Ibid, pp. 49 854 Ibid, pp 49 855 Hatch, J.1967, pp.50 160
Hayford founded the National Congress of British West Africa to demand greater rights for
Africans in government".856
As they "discussed political rights, discontent with colonial rule spread through West Africa" with groups like the ARPS setting epistemic bases in the Gold Coast. These groups of learned indigenes successfully prevented a Land Bill in 1897, which would have put all lands under the ownership of the Queen of Britain. By the mid-1940s, African "soldiers who returned from fighting for the
WWII allied forces in India and Burma found fewer jobs and rising prices”.857 Europe faced its own post WWII dilemma, so no equipment was sent from Britain to develop its African industries.
“News of the independence of India and Burma where they fought for their colonial rulers increased their determination to attack the colonial system".858
At this time, collaborations between those who had returned from studying in the West and intellectuals of the Diaspora communities in the West had begun to take shape. Leaders like
Kwame Nkrumah, influenced by figures like Kwakyire Aggrey, the first African to study at the then famous Achimota College in the Gold Coast, had gone from Africa to study in the West.
While in London, Nkrumah had further been influenced by Nnamdi Azikiwe, who organised the anti-colonial resistance in Nigeria in the late 1930s and published on African political rights, as well as set up his own political party. Nkrumah went on to study in the University of Pennsylvania where Azikiwe had graduated in 1935. There, Nkrumah got involved in and was further influenced by the civil right movements in the United States. He became a key figure in the collaboration between African diaspora intellectuals and those at home in Africa.859
856 Hatch, J.1967, pp. 51 857 Ibid, pp. 51 858 Hatch, J. 1967, pp. 50 859 Hatch, J. 1967, pp.123 and pp.50 161
This key Nkrumah's self-given mandate united the African independence movement into an epistemic collaboration between the diaspora and the continent’s intellectuals. After the 1945 Pan-
African Conference in Manchester, he was invited to join the first indigenous political party, the
United Gold Coast Convention (UGCC) in August 1947.
Ideological differences between Nkrumah and the UGCC founders led him to form the Convention
People’s Party (CPP) in June 1949. The arrival of the second political party defined the lines between the predominantly legal and economic thinking UGCC and the more socio-political leaning CPP. Their approaches set the basis of the independence movement’s ideological divide and epistemic directions and later, the new state’s interests. That became this decolonisation critical juncture’s most enduring legacy. The UGCC pursued a pragmatic economic approach with rapprochement towards the British Empire. The CPP however, took an uncompromising Pan-
African approach to total economic and political liberation first, eventually winning the first elections and later consciencising860 Ghana towards socialism.
Nkurmah invited diaspora intellectuals like George Padmore, a West Indies black political activist and W. E. B. Bu Bois, who had been the leader of the Pan-African movement in the United States since 1900.861 This epistemic influence spread quickly and engulfed the entire continent. "In 1945 when the Second World War ended, only four African countries were independent. By 1966, 40 countries were free from colonial rule leaving the rest either in negotiations or plunged into conflicts”.862 As more countries became independent, educated Africans with similar Pan-African visions joined in and Nkrumah, with this zeal, would go on to lead the formation of the
Organisation of African Unity (OAU).863
860 Nkrumah, K., 1964, defined as evaluating one’s own social circumstances as part of facts and events, pp. 2 861 Hatch, J. 1967, pp. 123 862 Hatch, J. 1967, pp. 125 863 Hatch, J. 1967, pp.123; Hargreaves, J. D. 2014 162
This intellectual and epistemic work, though often organised from an emotive perspective, certainly was the only ideational and knowledge base that fed independence because there was no state template in the modern European sense, which is why, very often, the "frontiers do not reflect national communities"864 as the case is in Europe. Subsequent paragraphs show the enormity of ideas, knowledge and expertise, and shows how the international circumstances at that time, like the Cold War, cut them short.
As already articulated, the process of socialisation through interaction with broader norms and discursive structures, which help states select preferences and acquire new interests, was cut off too early in Ghana.865 Furthermore, the lack of an existing template and colonisation’s structural antagonism meant actors had to construct new paradigms and learn new processes to shape new interests. Unlike in the cases of independence struggles where new ideas are shaped along the existing left/right ideological divide, self-determination in decolonising states in Sub-Saharan
Africa needed to construct their own paradigm and ideological nomenclature. This is where
Hobsbawm’s argument of a lack of pre-existing European type political institutions left skin colour, ethnicity and emotive unity against colonial oppression as primary motivational factors in building institutions866 and any epistemic deliberations to be based solely on agency.
For Kwame Nkrumah and a few members of these communities at the time, human agency was supposed to propel the missing ontological consciousness, which according to constructivism, is key to the sustenance of governance.867 Nkrumah wrote, the ontological “evaluation of one’s own
864 Hatch, J. 1967, pp. 127 865Wendt, 1994; Christiansen, T.; Jørgensen, K. E.; Wiener, A., (Edtrs.) 2001, pp. 53 866 Hobsbawm, E., 1990 867 See Reus-Smit, 2004 163
circumstances should be part of the analyses of facts and events”.868 A factor that, if missing, a
“person from a colony could easily find his breast agitated by conflicting attitudes, which can have effects that spread out over the whole society”.869 However, the trained lawyers, colonial public administration officers, writers, etc., among the diaspora communities within Britain and at home in Africa who understood state legitimacy only from a technical legal viewpoint, saw European statehood as an inescapable reality. This group was missing a key aspect, which is legality in the form of normative legitimisation, which is more important in state building than the pragmatic technical aspect they were trained to focus on. It was in the interest of the colonial system to teach law for pragmatic economic purposes and leave out what could enhance their collective knowledge and understanding of the texture of norms. Those with predominantly socio-political training, mostly from North American universities, wanted to shape a Pan-African ideology that questions the entire rationale behind the existence of European statehood in Africa.870
Here again, we draw a lesson from two issues we treated earlier (see page 64) – law’s pragmatic and instrumental use for achieving economic interests, which strengthens its notoriety and inability to decolonise, leading the developmental states model, and further into neo-colonialism.
The efforts to influence state building and policy directions with new knowledge and ideas ensured an ideological divide ensued between the emerging ‘epistemic communities’ stemming mainly from those two distinct backgrounds and political parties. The lawyers trained mostly in Britain, the same European Empire that colonised the then Gold Coast were on one side, and Pan-African socio-political intellectuals, mostly from universities across the United States of America, were on the other. Their self-organisation strategies sought to avoid hegemonic language and any use of
868 Nkrumah, K., 1964, pp. 2 869 Ibid, pp. 2-3 870Apter, E. D., 1963 164
force. Both sides saw the increasing involvement of the UN and the United States as opportunities in the fight for the independence of the Gold Coast Colony, but they differed on how it was to happen.
The socio-political intellectual side of the divide became more popular with public support in the colony through their direct anti-colonial rhetoric of legitimising self-determination. They sought the possibility to redraw colonial borders and reconsider whether European statehood was viable for people’s self-determination and development. They wanted the opportunity to explore whether indigenous rights can be codified into law, and whether local culture was susceptible to modern institutional arrangements. This shaped into the Pan-African ideology. The other side sourced legitimacy simply within European statehood, with a more progressive interpretation of the law, and resorted to liberal democratic ideas. This latter group did not really question the implications of the arbitrarily drawn borders, which serve outside interests better. The coloniser state obviously supported the latter group, diminishing any chance of an own ontological consciousness in the process.
The simplicity of the language of the socio-political knowledge groups resonated with the masses of the indigenes and the liberal progressive approach of the pragmatic legal thinking side was seen as a rapprochement towards the colonial power. The progressives appealed to the few, mostly educated upper class people. The defining element of the success of the progressives is the support of multilateral institutions such as the Bretton Wood Institutions who the international community tasked with developing independent African states. Those institutions played a major role in how international norms were generally received in Africa at that particular juncture and defined the legitimacy of the states.871
871 Apter, E., 1987 165
Initially, many international actors supporting development efforts in Africa held the same entrenched colonial preconception that indigenes, whether educated or not, were incapable of pursuing industrialisation economic goals and succeeding on their own. While this perception disturbed the Pan-Africans, the liberal progressive side, which was more pragmatic to Western initiatives, were not really disturbed. We find that this perception has been one of the major reasons why the developmental state type of state building in Africa is brute material based and not capable of receiving and processing ideas from within. It is one of the numerous reasons why the influence of local knowledge and ideas are missing in the normative texture of Ghana.
These different groups ultimately transferred the entire debate from the Diaspora to the continent of Africa, seeking the ideal meaning of self-determination and territorial configuration, and the understanding of what these two attributes meant in terms of sovereignty, or in terms of the lack of it. This pre decolonisation epistemic debate was “overthrown” by the efforts of the colonising state to make amends for the past through aid programmes. Experts from outside Africa primarily led this “Marshal Plan”,872 eventually leading to the current developmental state conundrum.
Ghana was always the microcosm of the self-determination debate, which widened as more of the
African states demanded independence. International pressure on domestic epistemic deliberation within the development narratives and ideas eventually prevailed over internal ontological deliberations.
Blocs of ideas such as the Casablanca and Monrovia Blocs deliberated on different ideas of statehood and continental alignments873 but the international multilateral efforts found a home in
872 Post WWII European Recovery Program, which was transferred to Africa in the decolonization times without much changes 873Wallerstein, I. M., 1961 166
Africa amongst the progressive knowledge groups. When the Cold War politics divided Africa, the Pan-Africans sided with the East and those pragmatic to liberal western values, the West.
External epistemic communities largely controlled the fabric of the state building efforts as exogenous expert communities in service of the multilateral institutions and donor states took over.
They could only assist policymakers in modelling state interests and directions other than locally required.874
The idea of development in Africa became experimental because while lacking prior experience to learn from, European statehood became inevitable, at the same time, it could not integrate with the local customary chieftain system. This resulted in rampant coup d’états and military overthrows, reducing efforts of internal epistemic influence to seeking normalcy.875 It created a situation whereby any epistemic interventions become solely focused on security. For example, the regional integration body, Economic Community of West African States (ECOWAS), formed with the mandate of regional economic integration has ever since its inauguration been forced to deal only with security matters.876
The exogenous normative frame of the Ghana case is based on ideas foreign to the state’s structural requirements and social discourse. The only legitimising factor in such debates is human agency from within. At both theoretical and empirical levels, it is implicitly assumed that social construction is a given fact. If deliberated upon at all, it is attributed to exogenous actors, often taking refuge in the colonial notion that indigenous knowledge groups are “uncivilised”. As such, there has been almost no role for internal epistemic deliberations in the post-independence state building and economic development narratives. The fabric and texture of governance cannot be
874 Easterly, W., 2014 875 Adekeye A. & Ismail Rashid, O. D., 2004 876 Ibid 167
traced in any of the ontological theoretical logics – neither Speech-Act theory, Foucauldian governmentality, Kelsen’s normativity or the “growth of new constitutional values out of profound ontological changes in humans consciousness to define the legitimate terms of governance”877 – employed in the critical contentions in this study. The role of epistemic communities cannot be seen here as fundamental and significant as will be the case in Slovenia because locally sourced ideas compete with the dominant exogenous ones and fail.
Consequently, potential epistemic group members either stay academicians or turn into practitioners leaving legal and policy norms, and laws and policies with no fundamentals in long- term constructs, or domestic social conditioning and actions. The legal and policy normative precedence remain in colonial predispositions and the state has become prone to destabilisation.
Observation of legal and policy thinking, in this case, reveals that short-term agency and urgency prevail in policies and laws, and are often a direct take-over from outside jurisdictions, which encourages the conflicting normative underpinnings and anomalies in seeking the state’s interests.
The state’s alternatives become curative measures for existing short-term anticipated social issues or dealing within current practices by experimenting and engaging in the semantics of current empirical actions. This is because policymakers come to believe knowledge, ideas and other mechanisms for thinking them properly through, exist only outside of their state.878 Normative approaches became less legal, and intensively political, arraying with colonial paths. Such challenges force the states frequently to uncertainties and new critical junctures. Potential epistemic communities seek other incentives than their knowledge and expertise. As argued the masses do, epistemic communities may also disengage from the state’s affairs.
877 Soltani, F., Jawan, J., and Ahmad Z, B. 2014, pp. 155 878Essuman, A. J., Interviewed 29th October 2014, Accra 168
While in the disintegration example, Slovenia had come to want to distance itself from socialist ideals, socialist ideas became attractive to states freeing themselves from Western colonial rule.
Post-independent African states like Ghana aligned with socialist ideas thinking they had more in common with African customs than capitalist ideas. Socialist projects in Ghana primarily could also not do better because structures and normative precedence still lay within the colonial understanding of statehood. Therefore, the distorted norms colonisation creates would have in the long run, also affected socialist projects in Ghana.
In the legal context, dual legality and its effects on epistemic deliberations becomes one problem that characterises the critical juncture of decolonisation in Sub-Saharan Africa. It amalgamates
Customary African and British Common Laws. The latter sufficiently codified and mixed with the un-codified basics of the former. Nonetheless, the state still has to work with an African socio- political system existing next to European polity. This distorts norms, values as well as all construction of social facts in the society. As social construction and action are not based on epistemological awareness but rather on exogenous ad hoc measures, it renders the capacity of local epistemic effects on laws and policy norms obsolete. Gyampo and Atupare agreed that this problem renders philosophical vehicles of political and legal systems such as ideology worthless.879
Any reacquisition of normative values plays into two of Kratochvil’s constructivist arguments.
One is the primary concern why certain values right from the start are accepted as norms and others are not.880 The second concerns the speech-act theory argument employed in the theoretical inference. Common Law always took precedence over the indigenous Customary Law because
Common Law is from the former colonial power, albeit an export from core state jurisdiction,
879 Gyampo, R., interviewed 3rd November 2014, Accra; Atupare, A., interviewed 24th October 2014, Accra 880 Kratochvil, F., 1989, pp. 26, 92 169
which mostly prevails. As legality is sourced from sets of rights and indigenous rights have no space in the system, legality only sits in the rights sourced from Common Law. The speech-act argument proves that for a credible social construction to take place, the context has to be accepted as a norm for a ‘threat’ or ‘promise’ to be credible.881 Since colonial order renders indigenous rights inapt, they hardly have any speech-act relevance, and therefore do not allow any role for local epistemic influence. Influxes of ideas remain only from exogamous sources.
This lack of locally shaped social constructs results in a tradition of non-critical approaches and narratives that often seek to gratify exogenous actors and constructs, often at the expense of local ones. Some of the internal effects have been the inability to complete constitutional amendments and democratic decentralisation processes, which often require serious legal frameworks constructed from within.882 The internal processes, which are usually framed around particular discourses, become heavily reliant on exogenous learning with no direct involvement of local experts. Direct mimicry and replication of outside systems do not give local experts the opportunity to acknowledge detailed challenges facing their societies. Along the same lines, policies and their analysis, legal traditions, methodologies and many other inherent norms addressing factors take to mimicking exogenous ones.883
Progressive advocates of legal realism in Ghana who believe in the judicial decision as the bases of law tend to think these are all not important for as long as material well-being is good enough to steer the state away from violent conflicts. Constructivists, however, believe that legal analysis must first, “consciously understand the basis of the rational belief that without rules we lack the
"cognitive control" essential to prevent oppression and social injustice”.884 Secondly, these should
881 Ibid 882Stone-Sweet, A., 1999 883 Stone-Sweet, A., 1999 884 Alexander, S. G., 1985, pp. 257 170
be products of social facts from within the culture.885 While decolonisation has advanced in this regard in social sciences, law’s basis on rationality, pragmatism and its hierarchical instrumentalisation886 works to deny a decolonised nation a notion of its own motivation, understanding and interpretation of the law.
Postcolonialism has become an entrenched area of study in social sciences with abundant knowledge and expertise but constitutional legality and norms from both causal and constitutive identity points of view still lie deeply in colonially exported laws, and hard for epistemic communities outside the core state jurisdiction to work with. We realise from the respondents in this case that there is a need for a constructivist type debate with neoliberal views active in decolonised states. The discourse of decolonisation and the philosophies that have emerged out of postcolonial studies have not had any bearing on legal studies from enacted laws’ point of view, but they are prevalent in social sciences to the extent of being overstretched.
Proper norm localisation at domestic level requires epistemic engagement, which does not happen in the case of decolonised Sub-Saharan African states like Ghana. They are always overburdened with exogenous influences, lacking any thrust between the cognitive elements of the local norms.
Even explaining this with path dependency becomes difficult because path dependent systems have inherently straight paths with positive feedback. However, decolonised nations have inconsistent ideological and historical traditions distorted to lead back to the coloniser’s laws.887
This is prevalent within the developmental state model in Africa. These misnomers lead such states to act hegemonic, taking materialist actions that overshadow ideational approaches, and leading to internal conflicts in their own borders. In summary, the difficulties Ghana faces in adapting to
885 This can be elaborated with the understanding of Eckstein’s idea of Culture of politics: See Eckstein, H., 1988 886 Kukki, M. and Sinclair, A., 2010 887 Gyampo, R., Interviewed 3rd November 2014, Accra 171
current ideational and rights-based norms, and the country’s materialist disposition, exemplify where epistemic influences failed. However, there is no doubt independence was a massive achievement. Let us see in the next analysis if we can indeed refer to these influential groups as epistemic communities.
Conclusion on Epistemic Communities within the case studies
Can we conclude the knowledge groups in both cases were indeed epistemic communities? Do states qualify as issue areas for the competences of such communities? Dunlop shows that epistemic communities approach the state or bodies such as the European Union with expertise on particular issue areas”,888 but in these cases, the states were the issue areas and there was no deliberate consistent consultation between them as groups and the leaders acting on the states’ behalf. Methodologically, they did not defer much from the concept. For example, in the process of socialising the state into a new legal and political system, they did everything “humanly possible to transform the state’s reality”889 with clear causative normative influences, shared values, the required value-shaping expertise and value-guided approaches.890 Attributes and events of the cases in subsequent paragraphs will help us determine how close these groups come to resemble epistemic communities.
The cases demonstrate epistemic community type far-reaching effects in both geographical and intellectual terms. They demonstrate constructivists’ empirical research “focus on good norms, like human rights, protection and promoting democracy”.891 They gathered cross-continental support in the case of Ghana, like the transnational influence Haas alludes to in the concept.892 In
888 Dunlop, C., 2000 889 Antoniades, A., 2003, pp. 21 890 Smirnova, M. Y. and Yachin S. Y., 2015 891 Finnemore, M. & Sikkink, K., 2001, pp. 403-404 892 Haas, P.M. 1992 172
the Slovenia case, they exhibited characteristics like temporal life span as a community, which was critical because it allowed policy influencing communities to remain dissident groups while helping to shape governance. These show semblance in their works with Foucault’s ideas on the influence of power in governance,893 and the application of ideas and scientific knowledge in changing governance circumstances where epistemic communities lead the charge.894
We find in this research that just like epistemic communities, their method of operation was difficult to be grounded in one particular area and could be referred to as “innovative”.895 From popularisation and reliance on integrated expert knowledge aimed at achieving political and economic decision-making influences to system influencing relationships within a larger context such as the push for decolonisation resolutions in the UN, or activism and appealing for international attention, all these become innovative ways for achieving their goals. However, epistemic communities have special methods such as the Delphi Method,896 required to obtain such shared integrated knowledge and unite different approaches to make knowledge a direct productive force in legal and policy settings.897
A common view between the epistemic communities’ model and constructivism is that objectivity and subjectivity are mutually constitutive.898 This made it possible for the groups to use knowledge to target clearly outlined objectives such as self-determination and sovereignty. Kucan and
Tudjman’s negotiations with the central government and Nkrumah’s manoeuvring, in specificities, concur with the belief in knowledge as a social construction tool in which factors such as value creation and the power of persuasion can affect brute material issues. In both cases, the moment
893 Ruggie, J., 1975; Dursun-Ozkanca, O., 2014 894 See Dursun-Ozkanca, O., 2014; J. Ruggie, 1975 895 Ibid; Galbreath D. J. and McEvoy, J., 2013 896 Smirnova, M. Y. and Yachin, S. Y., 2015, pp. 649 897 Ibid, pp. 649 898 Guzzini, S. and Neumann, I., (Edtrs), 2012; Haas, P., 1992 173
they were able to spread shared causal beliefs; they were able to get their materially superior rivals to recognise the value of negotiation. They made knowledge integration and expert evaluation both at the conceptual and empirical levels ‘legitimate’ for attending to normative changes, development of legal norms, development of technical systems, etc.899
The concept is categorised into ad-hoc and permanent coalitions,900 and the groups in the cases can be classified as the ad-hoc type. However, we observe that whether they were permanent or ad-hoc their influences and legacies “persist through institutions and the preferred world vision
‘they use to’ (…) create a shift from one state interest to another”.901 The influence of some, like
Kraigher, do follow through, while the persistence of the works of others like Janša and Nkrumah keep their presence in the discourse and practices they helped to shape.
In both cases, they operated as communities in different modes with shared knowledge, common goals, shared values and common problems to solve.902 Scientific disciplinary functions also united such communities in attending to the issues. For example, in Ghana’s case, community members were mostly from legal and social scientific backgrounds and, in Slovenia’s case, from different backgrounds and united through writing and publications. A critique here, however, is that while Haas conjured this as a form of integration and product of growing international interdependence, it has created difficulties for local and regional knowledge and value acquisition and sharing in states farther away from the core jurisdiction. Thus, obstructing the local knowledge and idea influx and denying local experts any ontological deliberation on normative matters that concern their societies.
899Smirnova, M. Y. and Yachin S. Y., 2015; Adler E., and Haas, P., 1992 900 Haas, P. and Adler, E., 1992 (Cited from the abstract of the work) 901 Ibid 902 Ibid 174
Tracing its chronological development in these cases, we observe that the epistemic community concept on the legal side does not go beyond helping to establish a system and socialising the state into the most current international norms. On this particular front, it continues to be stuck in norm empowerment discussions because of the use of law in achieving pragmatic ends. Bucar notes the concept has grown more policy-oriented and will perhaps continue to develop in that direction as states like Slovenia cede policy powers to the EU.903 Mitrany theorised that the world is becoming
“increasingly beset by policy problems that transcend national borders”904 so governments would steadily cede certain functions to global technocrats, acting as custodians of expertise, ideas and shared knowledge, thus, epistemic communities.
Concisely, the cases embody the epistemic communities’ cause-and-effect roles in different issue- areas to create an agency of action for state building. They ensured cooperation and developed new orders based on common meanings and understandings to which the states applied their power in practices.905 Both states benefited from the creation of new meanings to rally masses, leading to independence.
Slovenian knowledge groups, though not centrally organised, due to their presence as a collective within a smaller geographical area of action, come much closer in semblance to a coordinated epistemic community than Ghana. In the case of Ghana, it starts more or less as a global loose collective whose agenda is difficult to unite because of the lack of a pre-existing institutional tradition, emotive appeal to rational issues and several other factors. Having to garner knowledge, values, participation and support from three different continents – Africa, Europe and North
America/Caribbean – somehow denied them an immediate widely shared legitimacy and
903 Bucar, M. Interviewed 19th July 2014, Ljubljana 904 Wayne Sandholtz, and Stone Sweet, A., 1997, pp. 300 905 As put forth by Haas, P. and Adler, E., 1992 175
consistency in shared values. Nonetheless, this gave them a semblance to transnational epistemic communities.
Though not all group members may have subscribed to the same ideology in both cases, ideological differences marked Ghana’s epistemic intervention. Colonisation’s apathy towards local norms and the fact that some international standard-setting actors were beneficiaries of colonial interests, made the substance and sustenance of any constitutional legitimacy from a serious ontological deliberation difficult. This became an incentive that divided the community members along ideological lines with Scholars such as W.E.B. Dubois garnering diaspora and continental African support for a massive shift from Pan-African nationalism to socialism, which he and others like
Nkrumah created an African brand of socialism.906
In the discussion of specifics in the two cases, important attributes such as shared causal belief,907 ability to guide decision-makers towards the appropriate norms and to institutionalise specific norms908 emerge as their most important attribute during the critical junctures. The causal logic of epistemic coordination – major dynamics of which is uncertainty, interpretation, and institutionalization – was used to change mind-sets to accept new constitutional legitimacies.
We see in both cases that at critical junctures, material and ideational positioning can either settle or cause conflicts. Both the colonial power in the case of Ghana and the central government in the case of Slovenia had unmatched material (military) power. However, by agreeing on appropriate objectives, understanding the evolution and emergence of new ideas, knowledge, and norms within
906 Appiah, K. A., Jan. 2015 907Haas, P., 1992, pp. 3 908See Haas, P., 1992; Thomas, G., 1997 176
their communities, they preoccupied policymakers on both sides with negotiations and reduced the chances of belligerence.909
In Slovenia for instance, Janša and other dissident voices, though completely unattached to the federal government in Belgrade and the Republic government in Ljubljana, practically shaped a narrative that led in the direction they wanted. This research observed what Jalusic called; “too much politics in the old system (…). That, it was time to leave governing to the experts, to the technocrats – everybody else should take a break or be free to choose between activity and inactivity”.910 Tasking Janša with the Slovene Republic defence ministry – an institution that as a one-time dissident writer, his writings criticised on the federal level – sent a message of the
Slovenes intent to pursue independence on grounds far from military action.911
Two final illustrations on the Ghana case pertain to how first, the width and span of the epistemic collaboration – from Europe to the Gold Coast, to North America and to the UN – pressured the colonial government to grant independence. Secondly, their ideological division – thus, J.B.
Danquah, A.G. Grant and Edward Akuffo Addo among others, from a progressive viewpoint and
Kwame Nkrumah, George Padmore, and W. E. B. du Bois from an uncompromising socio-political
Pan-Africanist viewpoint – and the depth of its ensued debates practically made them a profound and necessary epistemic authority vis-à-vis the colonial government. Ernest Apter wrote that they summoned "symbols of progress such as science, freedom and ‘youthful activism’ to become cues, which (their) leaderships evoked and reinforced".912
909 See how this happens in Toke, D., 1999; D., 2000; Haas, P. and Adler, E., 1992 910 Julasic, V. in Benderley, J and Kraft, E. (Edtrs) 1994, pp. 150 911Janša, J., 1994, pp. 23 – 28, pp. 44. 912Apter, E., D., 1963, pp. 147 177
Before concluding, it is relevant to answer the questions asked at the beginning of this subchapter.
Thus, whether or not these groups are indeed epistemic communities and if states qualify as their competence issue area. There are several critical weaknesses in their formation, characteristics and methods. First, members of these groups simply recognised the need to contribute their part but were not selected and mandated by a presiding authority. Furthermore, while their influences endured, they did not meet to agree on techniques, principles, methods or approaches to influence independence attainment as organised epistemic communities would do. Finally, even if they are considered epistemic communities, the fact that most of the same influential ones moved to take on practical decision-making positions would make them the ad-hoc types. On the question of whether or not states qualify as their competence area, we simply say yes, since states are an issue area for investigation.
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Summary and Conclusion
This research was designed to answer three key questions. These were: to investigate to what extent new ideas contend with existing norms to usher in changes; to which extent could there be continuity at critical junctures despite significant ruptures; and to find out how much of path dependence may remain in the norms of the states, and how these affect identity, value and interest creation for law and policy making. Examining the degree of change that may occur versus how much of the existing normative path may be retained helped us understand certain key dynamics of the texture of normative changes that take place at such junctures. The last inquiry was to know how much new ideas potential epistemic communities at critical junctures induce in these processes to impact legal and policy changes.
In trying to answer the questions, we conceptualised a paradigm that is characterised by how humans resort to norms at particular critical times in pursuit of their goals, theorising the critical contention through the constructivist prism. With the interpretative case study methodology, we investigated two empirical cases of critical junctures. Generally, legacies common to their relations and proximities to core states and exclusive core characteristics associated with each type of critical junctures became enduring factors. Before drawing conclusions on the contentions, epistemic communities, and lessons from the empirical cases, it is imperative to look at the deployment of constructivism and lessons drawn from that.
The first key thing constructivism helped us defined and traced was how international norms transfer the interest of core states. With this, we realised a problem with Kelsen’s assumption on the Grundnorm; that legal norms are the same in all jurisdictions. For constructivists, humans resort to norms to socially construct their realities, and different jurisdictions try to construct their social facts according to their social circumstances. However, because of the way the most
179
enduring norms are transmitted from the core jurisdiction to the fringe of the modern state system with powerful states interests, the effect of the Grundnorm differs in different jurisdictions.
The way constructivism “clusters around several prominent problems”913 to debate the types of norms behind the causal and constituent structuring of social issues and how to approach them helped us look at two different theoretical problems within the same prism. The way it is concerned with the building process of social issues rather than just accepting things as a given helped us analyse the underlying cause of the contentions at the critical moments. Constructivism also granted us a way of addressing constitutional legitimacy grounded in culture, agency, effects of structure and identities, all of which are disseminated through shared knowledge rather than a rational pursuit of material interests. The dissemination of these "meta-values”914 provided us with a unified way of seeing the normative posture of the domestic arrangements of the states, with uniqueness to each type of contention at critical junctures.
Constructivism allowed us to explain geographic and cross-cultural norm diffusion in law, explaining how other analyses of norm diffusion and comprehension of legality are inherently tied to the production of norms in the core state jurisdiction. Other theories force normative changes to take values from the core states into consideration at the expense of local norms. Normative contestation in decolonised settings, for instance, cannot even consider local norms.
Constructivism provided us with a new frame of the construction of legal arrangement, with which we have questioned governance, and gained some clarity on the receptiveness and compatibility of constructivism on the domestic level, especially in normative rearrangement at critical times.
We find it is as compatible at the domestic level as at the international level.
913 Finnemore, M. and Sikkink, K., 2001, pp. 396 914 Soltani, F., Jawan, J. and Ahmad, Z. B., 2014, pp. 155 180
Constructivism and its multidisciplinary transcendence helped us understand why the dynamics of disintegration relates better to legal discourse than decolonisation, but both relate almost equally to social scientific discourse. It helped us gain insight into how colonisation destroys the texture of the normative substance of local norms. With integration, equal measure of values and interest disintegrate mostly along agreed or re-existing lines. The research also found that a nation integrated within a bigger one could maintain the nation’s desire to exist on its own through cultural norms and institutions915 as Slovenia did within Yugoslavia.
The kind of identity traits constructivist discourse focuses on allow such states to preserve their identities. In cases such as Ghana where the dominant core state norm builds on vilifying the local one,916 they help highlight the fault lines. In general, they help identify new normative directions, provide ways to part with path dependence and rely on new ideas, agency and/or structural conditions. Constructivism unites multidisciplinary and multi-dimensional studies that require legal, social and political analysis such as this one.
We found that path dependence treats the contention at critical junctures as part of an on-going morphogenesis of change. However, constructivism’s treatment of legal issues (or rules), agency and the role of structure taught us that the changes in norms could not be taken for granted.
Constructivism allows the rebuttal of Kelsen’s Grundnorm idea, because different interpretations of the construction of social facts as by Parsons and Foucauldian theorisation of governance, for example, teach us that each social setting is capable of reframing and shaping new norms for governance: thus, from the basic dyadic to the complex triadic levels of understanding governance.
The interrogation of the Grundnorm settles normative contestations at the basic level of new norm formation and empowerment from the international level. Thus, they are largely core state norms
915 Rupel, D. in Benderley, J. and Kraft, E. (Edtrs) 1994, pp. 186 916 See Fanon, F., 1963 181
formed from their domestic norms and transmitted into non-core states through geopolitical contestations rather than genuine systemic ones as perceived in Kelsen’s normativity claims.
The contention: the weakness in conventional approaches, i.e. their neglect of critiquing the import-export of norms along material interest lines and the dominance of core state norms in the non-core jurisdictions, strengthen the relevance of the interrogation of this contention. Indeed, a certain amount of thrust or friction happens between values and norms operating at that particular contentious moment with new ones taking over the system to usher in a new wave of collective overarching thinking for the state as new normalcy sets in. However, disparities still exist because of the discourse’s material focus and not so much on social and ideational facts. The current dissemination of international legal norms focuses more on human and minority rights protection than material ones like territorial sovereignty, paying more attention and shifting focus towards ideational and social facts.
We found that path dependent models do not explain such contentions and the shifts they create.
They seem unable to explain them because they focus on overall processes as part of a larger continuum in morphogenetic change. They simply explore cultural conditioning and its influences, how these factor into the influence and results of the effects.917 Unlike the contention we proposed and researched, path dependent models cannot analyse visible factors such as ideological shifts and their roles. However, it is important to mention that we have not found any evidence of the contention’s ability to supplant path dependence completely.
“Positive feedback, which is commonly expected in path dependence”,918 is clearly inconsistent in the case of decolonisation while fragments of it can be traced in the way the Communist Party in
917 Greener, I., 2005, pp. 65 918 David, P., 2000 182
Slovenia metamorphosed through an ideological adaptation into the Centre Left SD in the disintegration case. Furthermore, when we look at the “value of legal precedence”919 and the continuity that “legal evolution”920 ascribes to history and path dependence, there is a clear break away from an established normative direction, constitutional legitimacy and political system.
However, Goldstone’s argument that “a single change phenomenon cannot determine occurrence of path dependence”921 makes it possible for certain traditions to remain while the state has taken a new normative direction.
Models that pay attention to normative changes, like the contention researched, analyse the remaining historical patterns as being contingent to their emphasis on changes at critical junctures, unlike path dependence, which sees critical junctures as integral in an on-going morphogenetic change. The clearly recognisable shift in moral, social and consequently legal norms and policymaking trends after those critical junctures make path dependency and morphogenetic change approaches look like simple dialectical semantics of the connection between structure and agency.922 Such normative shifts are recognisable both in the international and the domestic contexts; e.g. with a clear shift from armament to human rights protection regimes on the international level, essential features of the states such as self-determination and sovereignty had to be redefined on the domestic level.
The non-ideological nature of how constructivism and its roots in Foucauldian discourse push the power of epistemic deliberation to become central in governance allowed agency, ideas, and contingent remains of structure and institutional history to interact with each other. In the
919 Hathaway, O. A., 2003. pp. 102 - 103 920 Hathaway, O. A., 2003. pp. 103 921 Goldstone, J. A., 1998. pp. 834 922 See Popora, D., 2013 183
contention, they drive factors such as self-determination and sovereignty to set new dyadic and triadic relationships in motion. However, structure does not always play a positive role. We saw in the decolonisation case that it can be an antagonising factor. This shows an own conscious ontological local epistemic deliberation on the ideas of the Grundnorm is capable of shaping new social constructs within local environments to contest with what is exported from core-state jurisdictions based on the assumption that norms are universal.
Epistemic communities: first, we find addressing contentions such as the creation of constitutional legitimacy in a way that is grounded in local political culture,923 human agency and the effects of structure and identities and disseminated through shared knowledge rather than the rational pursuit of material interests, makes actors not appear threatening towards each other. This is because there is no immediate interest to be achieved and groups like epistemic communities broker with their knowledge to ensure long-term interests take the front seat.
The epistemic community model indeed has more effects on ideas and social facts than other actors,924 which current norms and rights mostly depend on. We identified some critical perspectives some scholars argue are missing in the model. For example, the use of the epistemic communities’ model to analyse critical junctures gives a critical perspective to counter Toke’s critique of the model and the manner of its influence as being too positivistic and overrated.925 The job of rearranging state interests, constitutional legitimacy and reframing norms and identities under serious conditions of uncertainties; thus, practically the entire state’s raison d’être, certainly qualifies as a critical perspective.
923 See Eckstein, H., 1975 924 Haas, 2001, pp. 11759 925 See Toke, D., 1999; Dunlop, C. 2000, pp. 2-3 184
Epistemic communities become primary actors of causation models because collective actions are initiated with a shared structure of knowledge926 that functions as “cognitive toolkits”927 with which both social and material facts are built. In the case studies, we see how similar groups make sense of what is left of the structure at critical moments. With shared causal beliefs, similar notions of validity, and shared knowledge about social processes, though with varying methods and techniques,928 they pushed new agendas policymakers put forth to pursue. Whether in disintegration where ontological changes had empirical effects, or in decolonisation, where it stalled at some point, their intervention points to challenges in normative contestations and compliance disparities, which exert direct influence on governance. In the conclusion on whether or not knowledge groups in the cases qualify as epistemic communities, we fell short of a clear yes because there was no clear prior technique and methods agreed upon, and this is perhaps the first time the model is used in analysing state building. However, the leaderships of the two cases were affected in the same manner Checkel proposed that "agents to learn new values and interests through interaction with norms and their behaviours come to be governed by the logic of appropriateness”.929
Empirical case studies learning points: in these final paragraphs, we interchangeably use the two cases to pinpoint critical lessons we have drawn from the research. Operationalising the perceived contention that takes place at critical junctures between path dependence and new ideas mean domestic norms and descending international norms must compete or collaborate. Inasmuch as there are capable epistemic communities with the vested knowledge in the issue areas deemed
926 See Haas, P., 1992 927 Sadiki, L., 2008, pp. 162; Haas, 2001, pp. 11759 928 See Haas, P., 1992 929 Checkel, J., 2001, pp. 557; See also Risse, T., 2002 185
important at that moment, the ontological manoeuvring and brokering between different interest groups settle contestations that arise in the process. We find that depth of knowledge of the issues on the part of epistemic communities, geopolitical interest, proximity to the centre of diffusion of international norms, type of critical juncture, depth of the tradition of institutions and cultural homogeneity/heterogeneity, all factor into the contestation processes to lead the state in a new direction.
Heterogeneity and continuous diversity complicate the contention, compliance capacity and may lead to uneven congruence between new ideas, local norms, descending international norms and remnants of path dependence. Whether the existing path will prevail over new ideas or vice versa depends on type of critical juncture, level of epistemic engagement, the state’s internal coherence and proximity to the centre of diffusion. Whereas relative cultural homogeneity allows better new ideas influx, reception and congruence with less contestation in the Slovenia case, one could not really see how reception and congruence would be like in a culturally heterogeneous case of Ghana due largely to a misnomer arising from the way colonisation antagonises local norms. The trend of mimicry of exogenous norms and rejection of local ones still exist in the system in Ghana.
We find that colonisation as a phenomenon thrives on the back of normative distortions. Force is used to curb and tame any form of epistemic capacity and norm-influencing factors such as ideas and culture. Other factors like religion and morals are used as tools to succumb to colonial subjects.
A foreign norm, tied to material interests in the local environment, spearheads the impending imposition of exogenous interests. Dismantling such constructs may be the first step to resituate norms on their right axes, but as inferred above, that did not properly take place during decolonisation. The efforts, which have largely been appeasing or finding other equally materially powerful states to counterbalance the material power of colonisers, had not yielded any results.
Among the three key elements of constitutional legitimacy common to the two cases: individual 186
self-determination, rights protection and sovereignty, the last one is the most emphasised upon by actors in the Ghana case, and it is the factor that is much closer to the material than ideational facts.
In the current normative regime, a decolonised state like Ghana simply needs genuine local ontological epistemic deliberation, – whether based on human agency, speech-act theory, or any other meta-theoretical consciousness – to reverse the vilification of local norms.
In the disintegration case, the vastly established cultural identity base, even during the integration within Yugoslavia, was prominent, helping to keep Slovene identity alive. Unlike colonisation, integration was voluntary – certain groups may be dominant – and it does not lead to normative precipitations in which foreign norms prevail over indigenous ones. This we find allowed space in the Slovenia case for knowledge groups to have proper ontological impact and support policymakers to redefine all three key elements of constitutional legitimacy mentioned above.
Though security and survival were primary concerns in both cases, the opposing party’s military power was taken much more seriously in decolonisation than in disintegration. Disintegration devised more ideas to deal with material threats while decolonisation sought external support to counter such threats. While both cases considered international multilateral support, the support for decolonisation was more material than ideational. We also find the eras in which the two critical junctures occur play key roles. Constructivists like Klotz, Thomas and Katzenstein uncovered that norms have direct effects on security and states’ survival by working to achieve the objectives of steering away from belligerence.930 This was clearly visible in the process of disintegration.
930 Klotz, A., 1995; Thomas, D., 2001 187
Since rights protection-based approaches gained prominence, there exists a renewed and socially contextualised definition of sovereignty with strong emphasis on epistemic influence in which social facts and ideas such as ‘pressure’ give similar effects as material facts such as the ‘use of force. The international community has bought into it, and international institutions negotiate through it to punish non-complying states, with a tool such as economic sanctions and sometimes military force as a backup resort.931 Nevertheless, even before Slovenia succeeded with this in
Yugoslavia, apartheid South Africa, as used to build the hypothesis (see page 38), has been a case in which epistemic persuasion steered a normative direction. This means, in the current normative regime of social facts influences, the state building factors Marko posits (see pages 131)932 can help parties arguing individual self-determination and rights protection build viable states without resorting to use of force.
Conclusions: ideational approaches and social facts have direct effects on contemporary state building efforts because they deal better with the current normative regime and newly emerging challenges, which are far more complicated in texture and tend to transcend state borders. For example, managing social diversities such as minority rights and human rights are best resolved with rights protection approaches. Slovenia’s constitutional efforts to protect Slovenes outside its territory show they work transnationally as well as domestically and internationally.
The most relevant empirical conclusion of this study is grounded in the re-theorisation and reassessment of what goes into ideational and social facts for state building and governance from the fundamental level. Thus, how social relationships, regulation and administration start from the most basic interpersonal level between two disputants (dyadic), to the complex (triadic)
931See Duxbury, A., 2011 932 Marko, J., 2006 188
interaction, with a dispute settler.933 It has revealed how abstract contentions that take place between contingent remains of a historical path and new norms that infiltrate existing values at critical times. The study used this to explain why for instance, an ideological turnaround may be achieved, how and why that happens faster at one critical juncture than another. Whether the influential actors qualify as such as or not, attention to the epistemic community model showed how this value transformation takes place; how features like sovereignty, self-determination and rights protection norms are constructed and disseminated.
As the shifts from material to ideational and social facts continue, attention to norm empowerment is likely to become more prominent. This will also bring more attention to the role of knowledge brokering and actors in charge of it. We find that ideational approaches allow detailed nuances of norm diffusion such as contagion and influence on both “micro” diffusion (interpersonal), “Macro”
(states, social movement, etc.) and Systemic (international) levels. They are also able to analyse both universal and regional level contagion and influences of norms934 better than material approaches.
In the formation of new state interests at critical junctures, different states react differently to the same international norms, and the mechanisms for localising norms into domestic politics differ as well. Decolonised states must undoubtedly pursue new interests away from the ones with which they were colonised to have any chance of localising and complying with norms properly. Failure to do so will continue to ensure anomalies and misnomers in state normative underpinnings such as unparalleled dual legal postures, as in Ghana. New states born out of disintegrating larger states or union of states, on the other hand, can pursue similar interests under different conditions in the
933 Stone-Sweet, A., 1999 934 See Strang D. and Soule, S., 1998 189
aftermath of disintegration because disintegration often happens along the lines of existing territorial demarcations and self-interests. It has less or no psychosocial effects as colonisation has.
For example, Croatia and Slovenia are pursuing similar interests within the EU since July 2013, and it is possible Serbia could also join.935
While a decolonised state may also forge cooperation with its former coloniser, the decolonised state must first deal with its internal anomalies and misnomers as well as develop its own ontological consciousness in governance. Not doing so results in unparalleled relations, which may trump the raison d’etre of the once colonised state and the perceived objectives of the cooperation.
Ghana and the United Kingdom in the Commonwealth of Anglophone remains an asymmetric pursuit of a single interest since the latter granted the former independence. Nevertheless, if the coloniser and colonised share one of three points in the underlying models of states in Marko’s assertion - thus, ethnic or biological connection936- with each other, they can pursue the same interests. An example is Australia or Canada and the United Kingdom in the Commonwealth.
Without the ethnic/biological connection, it remains an asymmetric cooperation that only benefits the former coloniser and not the decolonised state.
The nuances of ideational and rights-based norms help address two important systemic issues in this research. One is the transcendence of constitutional rights beyond state borders, drawing legal protection from supranational interpretations from the competences of institutions such as the EU to challenge the strict international versus domestic dichotomy. The Article 5 of the Slovenian constitution mandates this sort of state border-transcending interpretation to protect the rights of ethnic Slovenes in Austria.937 Such premises can only be built on right protection norms unless the
935 Kranjc. J., Interviewed 17th and 22nd July 2014, Ljubljana 936See Marko, J., 2006 937 Article 5, Slovenian Constitution (It shall protect and guarantee the rights of the autochthonous Italian and Hungarian national communities. It shall maintain concern for the autochthonous Slovene national minorities in 190
state has a hegemonic ambition with the necessary force to threaten its use, which Slovenia does not. Furthermore, in a material regime, Austria will likely interpret this as an act of aggression.
The second issue the nuances of ideational and rights-based norms help us address is the
“continuous theoretical embarrassment”938 Kratochwil proposed that our reliance on the unquestioned dichotomy of the international versus domestic order creates. Supranational legal and policy initiatives through EU institutions, and border-transcending constitutional protections like Article 5 of the Slovenian, rectifies the “embarrassment” caused by this rigid long-standing
Hobbesian dichotomy.
We find in the cases that legal norms after constructivist type socialisation breakdown as follows: in Slovenia, the declaratory (ideological) and mandatory (norms that prompt the state’s actions) normative expressions even before independence, sought to part ways with the existing structure from the ideological, ethical to political levels. Any new notion of the realisation of the law within the newly independent country could only be liberal democratic according to Lang.939 We also find that retention and propagation of a cultural identity within Yugoslavia created some difficulties for entrenchment of socialist ideas.940
The decolonising state should have worked to escape the laid out peremptory (fundamental) and declaratory or ideological norms, which deem indigenes primitive and unfit for self-rule. However, most of the indigenes need to first re-consciencise941 into new peremptory norms that give them the needed ontological consciousness for their own epistemic and cognitive reflections on
neighboring countries and for Slovene emigrants and workers abroad and shall foster their contacts with the homeland) 938 Kratochvil, F., 1989, pp. 3 939Interview with Andrja Lang of Judicial Service of Slovenia, conducted July 2014; Interview with Prof. Pirnat, Ljubljana 940 Denitsch, B., 1996, discusses this in detail; how Marxist ideas have difficulties with ethnonationalistic and other forms of diversified societies. 941 Nkrumah, K. 1964 pp. 1- 4 191
governance. Rather, they were mostly consciencised into universal norms that are often detrimental to social facts and events closer to them.942 The state needs a proper ontological deliberation to negotiate for either Common Law or Customary Law or ensure a proper balance between the two. What it settled for is a competing yet unequal dualistic legal system that resulted in normative conflicts in favour of Common Law.943 The pragmatic application of this misnomer has become a feature of a defeat of purpose in the developmental state idea. Continuing to work with this misnomer is a “discourse of disjuncture between tradition that insists on the impossibility of developmental state in Africa and any prescriptions that presupposes their existence”.944
The antagonistic normative postulations in Ghana and the distorted social values they created, divided epistemic contributions to either conform to it or act from the fringes. Norm shaping epistemic communities often graduated into practice, which stagnated proper norm diffusion, localisation and compliance. In summary, what happens in a decolonised state at such critical junctures is a form of normative concession. Economic agency and urgency make a well thought- through approach difficult for a decolonised state, allowing neoliberal economic interests to dictate the patterns of norm empowerment and compliance. This allows the accepted norms to become
“artefacts of the dominant approaches”,945 practically forcing the interests of the decolonised state and its ability to properly localise norms out.
Approaches and theories that explain things from a rational and economic point of view
“understand all interests as self-interest, and see other behaviours as anomalies and fail to explain
942 Nkrumah, K. 1964 pp. 1- 4 943Atupare, A.; Antwi-Danso, V., Interviewed October 2014, Accra 944 Mkandawire, Thandika. Director, UNRISD, 1998. 945 Finnemore M. and Sikkink, K., 2001, pp. 403 192
social construction projects which are not self-interest” in nature.946 This forces them to impose brute material development objectives on the states and “constrain ideas as well as shift social facts to the margin”.947 This is why African states understand governance only in material dissemination terms. The prevailing material norms shape the fundamental agent properties and fail to theorise or document their own processes of social interaction. Agents like epistemic communities in such non-core state jurisdictions have to act "as if their behaviour is rule governance,"948 which is often not the case. They often graduate to practice or seek other incentives.
Examining the two cases according to the four criteria of epistemic community policy influences as proposed by Haas and Adler, (thus, policy innovation, policy diffusion, policy selection, and policy persistence),949 we find they selectively apply to the cases as follows: policy innovation, selection, policy diffusion and persistence in the case of Slovenia, and innovation and persistence in the case of Ghana. In both cases, decision-makers are found to make the selections on their own with the help of the epistemic communities. Innovation, which was central in the Slovenia case stalled in the Ghana case as it lacked ontological deliberations and norms were largely exogenously dictated.
Overall, examining the empirical dynamics allowed us a close look at the development and circulation of causal ideas associated with normative beliefs in the same ways identified in the theoretical investigation. The rational mean-end calculation that alters norms typifies the Ghana case while the logic of appropriateness replacing strategic and instrumental calculations typifies
946 Ibid, pp. 403 947 Wendt, A., 1999, pp. 114, 94 948 Checkel, J., 2000, pp. 1 949Adler E., and Haas P., 1992, pp. 375–387 193
the case of Slovenia.950 The contention being that brokering new constitutional grounds by
“appealing to norms, setting precedence, and salience is naturally part of the conventional bargaining processes”.951 Thus, the characteristics of the bargaining processes such as human agency and the “presence of coercion”952 may play a far more bigger role than we think.
There existed clear power differentials between the British government and the various epistemic groups of the Gold Coast (and later Ghana), and between the Republic government in Ljubljana and Yugoslav central government. In these cases, the bargaining process of the smaller power is characterised by human agency and the larger power appeals to coercion, mostly in the form of threat to use force. Persuasion away from force is possible. Within the prevailing bigger picture, applicable standards were developed for Slovenia or the Gold Coast (Ghana) to get their will enforced. Thus, the contention is practically an act of “collision of different actors’ goals”, for which “solution was sought through non-coercive means”.953 In this context, as humans resort to norms, the parties expected to be granted some form of “equal standings and considerations of each other’s interests”954 vis-à-vis their opponents, which “limited the dispute to identifiable issues”955 and eliminated use of force. By “utilizing norms that satisfy common criteria and adopting a no-harm standard as a substantive principle, the parties deliberately bounded the conflict and agreed on a method to resolve their grievances”.956 While brief hostilities were recorded, this was the general principle on which the actors resolved impasse resulting from the contention at the critical junctures.
950 March J. and Olsen, J. P., 1989 951 Kratochvil, F., 1989, pp. 181 952 Kratochvil, F., 1989, pp. 181 953 Kratochvil, F., 1989, pp. 181 954 Kratochvil, F., 1989, pp. 181 955 Kratochvil, F., 1989, pp.181 956 Kratochvil, F., 1989, pp.181 194
Once the smaller entity gained leverage, the creation of institutions was used to consolidate more grounds. In Slovenia, the Democratic Party (SDS) with a liberal ideology was created in the critical moments of 1989 to consolidate grounds. Timing: when to act, all played a key role in the bargaining process. It also eventually opened doors for other parties and institutions. These nuances play vital roles in constructivist’s interpretations.957 Other factors can be environmental.
For example, the growth of the Centre/left DeSUS Party around Maribor, which was by far the most industrialised city in the entire Yugoslav Union at the time, with SDS growing around Janza’s lead.958 Non-constructivist approaches do not pay attention to such cognitive nuances and conditions under which they factor into the bargaining processes.
Socialisation within a normative structure has a direct effect on how good a state crafts its laws within those norms. Generally, Slovenes socialised in core state norms before joining Yugoslavia, dating back to the 7th Century Karantania, thus, taking part in European enlightenment and making epistemic contributions within the core state norms.959 This put them in a better position to understand and internalise the applicable normative standards to negotiate their independence with the centre of communist rule better than other Republics who socialised in other normative structures, for instance Serbia, within Cyrillic autography. With international power balance tilting against socialism, such characteristics favoured Slovenia. For Ghana, the principal norms of international relations itself exist within a racialised white supremacist context,960 “exporting general principles of law from the West (core states) to the rest of the world through colonialisms”.961 This shapes how Ghana socialises in the legal system. As far as the state is
957 Brglez, M., interviewed 16th and 18th July 2014, Ljubljana 958 Benderley, J and Kraft, E. (Edts.), 1994, pp. 104, 107, 243 959 Rogel, C. in Kraft, E. and Benderley, J. 1994, pp. 4 960 Anieva, A.; Manchanda, N.; Shilliam, R. 2015 961 Kurki, M. & Sinclair, A., 2010, pp. 18 195
concerned, law “still reflects and shapes the interests of imperial powers, white men and capitalist centres”962 until it decolonises at the ontological level.
Finally, two lessons are key to all factors: the case studies, cognitive influence, epistemic groups involvements, state building, contentions at critical junctures, theories of analysing governance and what conventional approaches factor in or reject in state building. First, the role of ethnicity and inherent nationalism963 can no longer be ignored. They begged to be included but colonial governments side-lined them in the constitutional processes in Ghana.964 Ethnic heterogeneity could have shaped the necessary ontological consciousness the state’s identity needed. A lack of which was a fundamental weakness of legality in Ghana, and most states outside the core jurisdiction.965 These identity factors clearly differentiate the African from their European counterparts, but they have not found space in “the actual African states”.966 The “few decades of colonial administration”967 combined with arbitrary borderlines could not give “internal cohesion”.968 All nation/state-building969 factors Marko and Chandra970 allude to exist but did not influence the fabric of the states. Similarly, ethnonationalism was a key factor in Yugoslavia formation but socialism sought to lessen its relevance and Marxists approaches’ difficulties with ethnonationalism became obvious. The second factor is the different layers of a transition process.
This is a factor that states building, especially critical transitions such as the two case studies, needs to take seriously for such transitions to affect the development of the collective national consciousness.
962 Kurki, M. & Sinclair, A., 2010, pp. 18 963 Grgic, G., 2017 964 The 1925 and 1946 Gold Coast constitutions. The Gold Coast Parliamentary Hansard of July 1952. HL Deb 24 July 1952 Vol 178 cc247-65 965 Hobsbawm, E., 1990, pp. 67; Marko, 2006, pp. 504-505; Chandra, C. pp. 5; Kurki and Sinclair, pp. 14 966 Hobsbawm, E., 1990, pp. 67 967 Ibid, pp. 67 968 Ibid, pp. 67 969 Marko, J., 2006, pp. 503 970 Chandra, K., 2012, pp. 5 196
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Appendices
Qualitative Expert Interview Guide
Supplementary Quantitative Questionnaire (Slovenia)
Supplementary Quantitative Questionnaire (Ghana)
Glossary ACHPR - African Court of Human and Peoples Right ECJ - European Court of Justice HC - High Commissioner IEA - Institute for Economic Affairs TDR - Triadic Dispute Resolution OSCE - Organization for Security and Cooperation in Europe
Interview Partners and Other Research Avenues Ghana Dr. Atuwide Atupare, Faculty of Law, University of Ghana Prof. Gyampo: Faculty of Political Science University of Ghana Dr. Atupare: Faculty of Law, University of Ghana Prof. Abeeku Essuman Johnson: Faculty of Political Science University of Ghana Prof. Yaw Beneh (Head of Faculty of Law) Sam Okudzato and The Okudzeto Chambers, Dr. Vladimir Antwi Danso, Legon Centre for International Affairs and Diplomacy (LECIAD) Conferences: Ghana National Constitutional Consultation Convergence 29th July 2014 Institutional visit: Institute of Economic Affairs, Ghana (Dr. Ofori Mensah, Research Fellow on Legislative Review and Reform, Ghana Institute of Economic Affairs, Interview with Dr. Mensah)
Slovenia Andreja Lang Ministry of Justice and Transitional Authority at the Judicial Service of Slovenia Mojca Hardi: Ministry of Justice Prof. Rajko Pirnat, Faculty of Law, University of Ljubljana Prof. Janez Kranjc, Faculty of Law, University of Ljubljana Milan Brglez: FDV Department of Social Science University of Ljubljana Prof. Irena Brinar FDV Department of social Science University of Ljubljana Interview with Professor Maja Bucar, Dean of the Social Science Faculty of University of Ljubljana: Conducted 17th and 23rd July 2014, and FDV School of Social Sciences, Faculty of Law, University of Ljubljana, Ljubljana Peter Petrovic Editor, Mladina weekly 16th and 22nd July 2014, Ljubljana 34
Borut Mekina, Contributor, Mladina weekly, 22nd July 2014, Ljubljana Nenad Glücks, The Reporter News Weekly 22nd July 2014, Ljubljana Gal Kirn, Slovenian Philosopher, Humboldt University, Berlin, Germany (Founding Member of United Left Party) Sreco and Nada Kirn, (Parents of Gal Kirn and strong advocates of independence during the Slovene Spring and contributors to Mladina weekly)
Appendix I: Qualitative Expert Interview Guide Note:
Dependent variables: • Critical Junctures Definition: times when states go through looming uncertainties in their life cycles Main examples being decolonization and disintegration
Independent variables: • Existing norms • New norms • Path dependence • New ideas • Knowledge • Epistemic communities as one of many actors and their influences
Conceptualization States remain units of analysis with the study following a descending logic of influx of norms from international to domestic levels of interstate and intra state affairs Theorization Study retains as theoretical focus with constructivism as the main theoretical approach, affecting the methodology too.
Methodological approach being strictly qualitative (with quantitative analysis to be used only if need arises)
Supplementary quantitative questionnaire supplied to all experts interviewed.
Methodological philosophy Weber's notion of Verstehen, symbolic interpretations and phenomenology
Objectives • Examine the importance of critical junctures in the life cycle of states • To examine the influx of new norms and new ideas at critical junctures • To ascertain the role of particular actors in the infusion (diffusion, empowerment and reception) of new norms • Examine how rule-based constructivism fair at the domestic level • To examine how these how these affect social legitimacy and constitutional legalities
Empirical Contexts Slovenia (Emerged Independent state from disintegration of Yugoslavia) • New ideas, new norm influx, misnomers and role of epistemic communities
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Ghana (Independence from colonization and legal normative context) • New ideas, new norm influx, misnomers and role of epistemic communities
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