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Doctoral Thesis a Constructivist Study of Critical 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
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