Like many of you, I spent my holidays avidly consuming “low brow” fare. A little 3D Martin Freeman there; a little conspiracy theory novel there. Because I’m in grad school, the diet was interwoven with some texts I’ve long meant to pull off the shelf, notably Steven Lukes’ “Power: A Radical View“, and journal articles like “Political Science Research on International Law: The State of the Field” by Emilie Hafner-Burton and colleagues. What the high and low brow had in common were the notions of power and persuasion.
It was fun to read and watch this batch of things together.
By night, I would read “The 500,” a taut political thriller about the exploits of Mike Ford – a law school grad who encounters the seamier side of power in Washington. In this fictionalized (but realistic) DC, the power elite keep each other in line through the mechanisms of money, influence, coercion and ego manipulation. When I was an advocate in DC, I knew the author, former journalist Matthew Quirk, through a common friend. As twenty-somethings in DC on the margins of power, it’s pretty obvious pretty immediately that this is a pretty loyal inventory of the way the capital works.
What is obvious to practitioners, however, is what social scientists painstakingly try to prove. (I can attest to the pain!)
So, by day, I would read through Lukes laboriously arguing with the scholars of the day about whether power was simply a description of what legitimate government does (Hannah Arendt), the exercise of coercion (the first dimension of power, according to Lukes; see Robert Dahl’s exposition of the powerful getting the weak to do what they otherwise would not), or something else.
Dahl’s methods had much to recommend them, in that they looked at observable instances of conflict, where the well-defined interests of a well-defined elite prevailed regularly over a well-defined conflicted interest from any other group. Lukes attempted to build on that prevailing “pluralist” view by pointing to the work of “second dimension of power” scholars, who noted that the powerful can also set agendas, so that actually existing conflict is never brought into the open. Power is a lot harder to test in those cases. Even more difficult to test is Lukes’ third dimension of power: the setting of norms. Lukes writes:
A may exercise power over B by getting him to do what he does not want to do, but he also exercises power over him by influencing, shaping or determining his very wants. Indeed, is it not the supreme exercise of power to get another or others to have the desires you want them to have: that is, to secure their compliance by controlling their thoughts and desires?… What one may have here is a latent conflict, which consists in a contradiction between the interests of those exercising power and the real interests of those they exclude. (2005: 27-28)
On some level, this is a revival of the Marxist notion of “false consciousness.” Unlike many Marxists, however, Lukes tries to not simply assume by reference to a grand theory what an oppressed person’s real interests are. Social scientists working with the first and second dimensions of power are forced to look for activities by individual banner-holders of the elite views who are making things happen (or not happen). The third dimension points towards examining activity and inactivity by both individuals and larger groups who can make things happen by ensuring they not only don’t come up, but aren’t even contested. The challenge is to identify “real interests,” which Lukes says could be ascertained by recourse to utilitarian calculations, Amartya Sen’s human capabilities approach, or the revealed preferences of the underclasses at those exceptional moments when the tables are turned and the structures of domination are momentarily suspended. (2005: 146-147)
Lukes was primarily focused on domestic, localized conflict, where distinctions between groups could be drawn by criterion such as whether they were multi-issue (and then had power liquidity and could manipulate a wide range of activities and norms) or whether single issue (and thus having a very narrow range of contexts over which they could exercise power). Things get trickier when states are brought in, let alone many of them.
It is this exercise of power that Hafner-Burton directs her international relations (IR) survey towards. By focusing the microscope on law, she is already veering from the types of raw military and diplomatic feats of strength that concerned the traditional realist theorists. But IR scholars -even those studying coercion (the 1st dimension of power) – have managed to incorporate analysis of law as a mechanism for powerful states to reward or punish weaker states.
For the other dimensions of power, the role of law may be a bit more obvious.
Scholars working with the agenda-setting second dimension of power have looked to ways that states have used international legal settings to link issues together, and therefore exercise power. Non-state actors (like business groups or NGOs) have also used their expertise as a way to set the international agenda.
Those working with the third dimension of power have looked to the ways that international law creates expectations about future conduct. Indeed, the codification process itself can set standards that can justify the use of government resources to track certain issues or work towards compliance in ways that simple inter-state conflict or diplomacy does not. International legal norms are more likely to spread when states are predisposed (because of national culture) to comply, or when there are economic benefits for doing so.
Hafner-Burton adds discourse, persuasion and communication as a separate fourth dimension of power. For instance, just by creating the category of something called “international law,” power wielders focus attention on behavior that is not accepted because it is defined as “illegal.” Rhetorical entrapment can lead to certain policy conclusions being (or seeming to be) preordained or inevitable. Desire for legitimacy can constrain the actions of even the powerful. International organizations socialize the preferences of elites.
Scholars working in the last two dimensions include: Ronald Krebs, Rodger Payne, Christian Grobe, Martha Finnemore and David Bearce, among many others.
(It’s worth noting that Lukes would probably take issue with this as separate from the third dimension. He is fairly scathing in his critique of Foucauldian analysis, which at their extreme disavow agency by making even the notion of agency a social construct created by the micropolitics of power. (2005: 91, 105) Internalization of norms is simply the mechanism whereby the third dimension works.)
What’s challenging about analyzing international law as a site of the exercise of power is that doctrine-oriented lawyers would often be loath to admit that it exists, or would advance that the law is actually an alternative to brute military force. And the more free-floating discourse analysis approach work for illuminating the mechanisms of dispersion about ideas among elites, but don’t work for explaining how ruptures in who counts as elites come about. So, if I want to understand why Korea or Mexico’s elite government negotiators sign their countries onto investor-state dispute resolution, the norms approaches help. If I want to understand why popular majorities overthrow such elites in Bolivia or Ecuador, I have to look to more traditional modes of power analysis, many of which bring into question whether law is even a worthwhile concept in social science.
The trick in all of this is defining a methodology that reliably measures what seems almost obvious to the casual inhabitant of Planet Earth.