A Reply to My Critics

Previous article FreeA Reply to My CriticsAntje WienerAntje WienerUniversity of Hamburg and Lauterpacht Centre for International Law, University of Cambridge Search for more articles by this author University of Hamburg and Lauterpacht Centre for International Law, University of CambridgePDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreFirst of all, thanks are due to Jonathan Havercroft for extending the invitation to discuss A Theory of Contestation at the “Author Meets Critics” panel at the American Political Science Association meeting in San Francisco in 2015, and for subsequently putting together this symposium. Needless to say, I am also incredibly thankful and humbled by the serious engagement and the exceedingly insightful and thought-provoking comments offered by the symposium’s other contributors. All critics engage with gusto in contestation themselves, a practice, Sasikumar Sundaram astutely notes, that is a sine qua non for legitimately advancing and probing academic progress. If this sensitizing effect holds for a wider readership, my small book’s goal of engaging interdisciplinary scholarship towards developing a concise research program on norm contestation is more than met. I had conceived of A Theory of Contestation as a think piece during a writing retreat in order to step back, pause, and think. This seemed important within a context of international relations theory that was set by breathless theorizing about methods that often remained somewhat detached from larger questions of global governance. For example, should academics feel a responsibility towards engaging with governance outside academia—a question that James Tully’s Public Philosophy in a New Key1 centrally addresses, and which Markus Kornprobst also answers positively in his notable paper on “polylogue” beyond the “discipline.”2Against this background the book addresses “contestation” as a concept in international relations theory. As Jonathan Havercroft notes in his introduction, the concept had been used by lawyers undertaking research on compliance with norms more than a decade ago,3 and I have used it in order to shed a critical light on constructivist norms research.4 I am encouraged that A Theory of Contestation speaks to scholars with such distinct research agendas as represented by the commentators in this symposium. Consider, for example, Christian Bueger’s use of A Theory of Contestation’s methodological framework for evaluating the constitution of “layered knowledge” in a case study on piracy5 on the one hand, and Lisbeth Zimmermann’s reading of A Theory of Contestation as offering the possibility of “adapting Habermasian democratic theory to the international conditions of diversity”6 on the other. The theory appears to be speaking to both those with predominantly empirical research agendas and those with predominantly normative agendas.In the wider context of international relations theory, A Theory of Contestation’s main role may be that of a transmission belt that offers the means of linking norms research with recognition theory in order to address issues of justice under conditions of global diversity. Further research building on A Theory of Contestation’s focus on the “is” (what is visible?) and the “ought” (what is possible?) of norms research stands to benefit from current cutting edge theoretical advances in both international relations (e.g., on pragmatism, transnational law) and recognition theory (e.g., theories of justice, global constitutionalism). The following will elaborate on these prospects. Given the limits of space it is impossible to engage in all due detail with the comments which were made by the authors of this symposium. This concluding article will therefore elaborate in more detail on three central themes. The first is about theorizing practice in the contingent process of modern state building. It highlights the conceptual distinction between regulatory and customary practices of constitutionalism, which informed the book’s intention to highlight the impact on cultural diversity on norms research in international relations. The second theme addresses the potential of a bifocal approach to norms research that promotes a dual focus on empirical and normative issues. This aspect was raised in the contribution by Havercroft and Duvall in particular.7 The third theme considers the question of labeling, i.e., would a label of “agonistic constructivism” be more appropriate than one of “critical constructivism” for the epistemological stance that underlies A Theory of Contestation.Two Constitutional “Practices”: Regulatory and CustomaryMy previous research addressed the interplay between Tully’s two broadly distinguished regulatory and customary constitutional practices, and accounted for the latter by reconstructing normative structures of meaning-in-use in four arenas.8 I made two conceptual claims on the basis of this research. First, I distinguished three types of norms as ideal-types in order to facilitate conversation among various disciplines that addressed norms; second, I distinguished three practices of norm validation in order to account for the spatially constrained or enabled access to contestation. A Theory of Contestation works with both distinctions in order to flesh out the “is” and the “ought” of norms brought to the fore through contestation. The question is, if contestation is central for establishing legitimacy through ongoing access to contestation in domestic politics, what are the conditions for contestation in global governance?A Theory of Contestation addresses this question along three operative dimensions that are explored with reference to three thinking tools (the normativity premise, the diversity premise, and cultural cosmopolitanism). In a first step, the book conducts a literature review in order to establish which literature addresses contested normativity and, therefore, would allow for an understanding of contestation as a norm-generative practice.9 The second step asks how to address the legitimacy gap in global governance empirically.10 And the third step pursues distinct degrees of norm contestation that stand to be expected vis-à-vis the three types of norms. Due to their wide moral range and thin specification, the substantive normative meaning of fundamental norms (type 1 norms) is most likely to be contested, and standardized procedures (type 3 norms) are least likely to be contested. By contrast, organizing principles (type 2 norms) evolve through the very practices of policy making and politics; they therefore reflect a strong potential of norm-ownership. As such they are more likely to be considered as shared reference points by the involved stakeholders. Follow-up research that builds on these findings of the Theory of Contestation’s focus on contested norms of global governance will turn to contested norms at distinct layers of global society. Here the research objective is set on the constitution of normative grids through contestatory practices. These “normative grids” are defined as the spaces where the meanings of norms that underlie or are bound up in agents’ practices—and thus orient agents in their everyday business—form.11 Against this backdrop I explored how to enhance stakeholder access to regular contestation.Is there anything for students of international relations to gain from studying the relation between the two constitutional practices that Tully has called “regulatory practice” and “customary practice”?12 Tully has brought the interplay to bear in his Strange Multiplicity, which makes the hidden constitutional practice of indigenous people in Canada visible. In The Invisible Constitution of Politics, I used these two constitutional practices to account for hidden meanings of fundamental norms in Europe, in order to highlight the impact on hidden cultural meanings on European governance.13 As Tully suggests, it is important to focus on customary practices which for centuries have been pushed beneath the map of modernity by an emphasis on regulatory practices, in order to bring culture to bear in negotiations over the norms that govern us today.14Many philosophers and political theorists have come to share this concern for bringing back a “cultural” interpretation of governance norms in order to address diversity through critical engagement with citizenship, migration, minority rights, justice, or Postcolonialism. International relations theory has seen a parallel move towards the appreciation of cultural experience and of its impact on international relations. There has been an unprecedented rise in research focusing on practices, research based on an ever more refined array of methodological tools from the sociology of knowledge, pragmatism, discourse theory, and ethno-methodology. These tools from neighboring disciplines include social anthropology, legal anthropology, hermeneutics, and especially sociology. In the process, cultural knowledge has broadened research on norms in particular. While the normative concern for justice is clearly more of a motivation for recognition theorists, much of current international relations research on practice reflects a critical engagement with the lingering influence of modernity that is carried by the “Westphalian” narrative.15 The shared interest in bringing heretofore hidden cultural meanings to the fore by studying practices is thus a common research objective.A Theory of Contestation explores the normative potential of cultural practice through its third thinking tool, cultural cosmopolitanism. In addition, and following recognition theory, which implies that the contestation of governance norms must at all times be possible for those governed by these norms,16 A Theory of Contestation identifies empirical access points for recognition theory to be applied to global governance. With reference to sectoral overviews in security, climate, and fisheries governance, the book suggests that, given the current conditions of politics and policy making in these sectors, the meso level, which is situated between contested fundamental norms at the macro level (type 1 norms) on the one hand, and regulatory standards at the micro level (type 3 norms), on the other, offers the most obvious site from which to develop pathways that facilitate enhanced access to participation for stakeholders. The meso level is conceptualized as the space where type 2 norms evolve through practice (e.g., policy making and/or politics). As such it offers a conceptual access point to theorize about and explore the conditions of access to regular contestation for stakeholders. Relatedly, it is at this level where these conditions then stand to be probed with a view to enhancing access to participation at specific sites where normativity is negotiated. This has been demonstrated by the norms of common but differentiated responsibility in climate governance, by the precautionary principle and agreements on total allowable catch in fisheries,17 and by the responsibility to protect norms in security governance.18The focus on this meso level has generated some confusion among readers, who rightly ask whether A Theory of Contestation would suggest that norm contestation was to be located exclusively at the meso level and brought to the fore by reconstructing practices at the “referring stage” of norm implementation (compare Figure 1 below).19 The answer is of course no. Rather, the meso-level cases have been chosen as exemplary cases in order to identify and analyze the most likely windows of opportunity for policy change. As noted above, it remains for follow-up research to empirically examine the emergence of normative grids in distinct societal scenarios of normative conflict on a horizontal and vertical global scale (i.e., including national, regional, and global scenarios of contested normative meaning.) This said, the typology of norms is meant to allow for types of norms to be changed and accordingly moved up and down the column (compare Figure 1 of my summary in this symposium).20 As Hafner-Burton and Pollack have shown in their analysis on the policy of gender mainstreaming, the validity claims of some norms change through the process of policy making. For example, the fundamental norm of gender equality has become less influential than the organizing principle of gender mainstreaming.21 When applying the typology that is used by A Theory of Contestation, this means that effectively the gender equality norm moved down the scale from being considered a fundamental norm with wide-ranging moral impact (type 1) to becoming an organizing principle (type 2). I would also concede to my critics that the typology should not be restricted to levels of governance and also refer to the study of contested norms at distinct layers of society in order to stress the impact of social interaction vis-à-vis norms.22 International relations theory then conceptualizes these societal layers as the locales where normative structures of meaning-in-use are re-/enacted. Reconstructing these normative structures allows researchers to unearth normative grids, from which can be derived the most important pathways to participation in terms of facilitating access for stakeholders.23A Bifocal Approach: Impossible?A bifocal approach is helpful because it “clarifies empirically and normatively the recognition and distribution of aspects of contemporary struggle and their interaction without reducing one to the other.”24 To illustrate the argument for a bifocal—an empirical cum normative—research perspective, consider this situation in twentieth-century Europe: after two decades of citizenship practice, the legal institution of European Union citizenship was stipulated in the 1993 Maastricht Treaty’s Article 8. This development created a nice puzzle for political science research, for it established citizenship in a non-state. If citizenship was not defined by the two pillars of membership rights and shared national identity of a given political community,25 then what was the meaning attached to this citizenship? Following Tilly’s relational historical research on state-building,26 the research assumption was that, since the European Community (later European Union) was defined as a growing community of multiple nationalities, the meaning of Union citizenship must be reconstructed with reference to the evolving practice of European citizenship.27To provide an example, the following sketches the empirical dimension of an applied bifocal research approach in order to understand the puzzling introduction of European Union citizenship. If citizenship is a core norm to the process of modern state building, and the European Union was to remain a non-state polity, how can the successful stipulation of the fundamental norm of citizenship in the Maastricht Treaty be explained? Several methodological steps are key when addressing the citizenship puzzle: first, reconstruct the stages of evolving European citizenship practice since it was first conceived (policy analysis); second, explore the meanings attached to Union citizenship by the multiple state and non-state actors, such as NGOs and advocacy groups (discourse based on documents and interviews); and third, reconstruct and compare competing constitutional narratives of the EU and of its member states, and evaluate their impact on the relation between citizenship and the authority of the states (normative evaluation). In addressing the puzzle of citizenship in a non-state, three norm types and their validation along formal, social, and cultural validation shed light on the “normative grid” of citizenship in a non-state. The research begins from the common understanding of two-tiered citizenship (rights and identity) as a fundamental norm of modern nation states. The research question—as pursued in my own earlier work on “European” citizenship practice28—was triggered by the empirical observation that Union citizenship presents a puzzle to modern citizenship theory, for it adds citizenship to an organization that is not a state. Note that the bifocal approach could, however, have taken the opposite perspective, arguing that citizenship is too exclusive a concept and that therefore other more inclusive forms of citizen participation need to be developed.29In 2008, fifteen years later, in a notable legal opinion that was offered by the Advocate General to the European Court of Justice in the Rottmann case,30 three layers of meaning were identified as constitutive for citizenship in the EU: national citizenship (in the case at hand, Austria and Germany), Union citizenship (as stipulated by Article 17 of the Lisbon Treaty) and European citizenship (as constituted through partaking in cultural practices in the EU). The third layer, European citizenship, was most notable, for it had never been formally defined as such before. And yet, as the opinion of Poiares Maduro, the European Court of Justice’s advocate general, suggested, it was sound enough to provide the rationale for arguing that, based on European citizenship, it is possible for a plaintiff to avoid statelessness. In this case, the plaintiff was an individual, who, through a complex series of circumstances, was faced with losing both German and Austrian citizenship, and therefore also, by definition, Union citizenship. Notwithstanding the eventual outcome of the case, the advocate general’s reference to the concept of “European Citizenship” suggested that cultural practices matter for the meaning-in-use of citizenship by introducing a third category of citizenship to the European citizenship discourse.This story sheds light on how contestations of one norm (i.e. citizenship) at one of several societal layers contributes to change the meaning of a norm, through re-enacting its normative meaning-in-use. Through contestation, the normative meaning-in-use of citizenship is re-enacted as one of many possible contestations about citizenship. The deliberations in the Rottmann case suggest that cultural practice potentially affects the meaning that stakeholders assign to (or expect of) fundamental norms such as citizenship. In addition, the citizenship story sustains one central claim of A Theory of Contestation, namely that norm contestation (whether expressed through the mode of arbitration, deliberation, contention, or justification) can occur at various layers of the normative structure, including national, regional, or global governance. It also shows that through re-enacting meaning-in-use, contestation affects the normative grid of global society. How did Union citizenship become formally stipulated, and how does this additional citizenship affect national citizenship in the European Union’s member states? What does this institutional change imply for our perception of citizenship as a core constitutional norm, a central element of the “Westphalian constitutional narrative”? To probe these research questions, bifocal research to focus on the interplay of the two constitutional and research in international relations theory holds that norms have a dual evolve through social validity and are by and re-enacted as of the normative of meaning-in-use of given society. Given these three about the norms it that societal become through it is that become the sites where contested norms of governance are most likely to become visible. the of contested various contestatory practices are theory would suggest that it is these practices that should be enabled in order to the practice of for global the these and should be enhanced through engagement by scholars who are bringing their knowledge, thus and facilitating ongoing contestation about the norms of governance. A Theory of Contestation’s of as a principle of global governance, this interaction between the “is” and the “ought” of contestation. By applying a bifocal it possible to of contestation as windows of opportunity for advancing in global society. The concept of access to regular contestation contestatory practices as the that through contestation and norms) by those to Tully’s theory a of the global citizen refer to a who is to a of governance is to say, and, and is an in the of a governance This citizen is informed by and constitutive for governance would therefore the bifocal perspective, also the conceptual involved in a bifocal research and that it much more through research. It also to be probed by and interdisciplinary this symposium’s an on such in the example, Bueger’s of A Theory of Contestation’s norm types and the steps through which multiple agents out knowledge in the case how contestatory practice the normative grid in a society with political and legal In this the struggle for recognition in the of governance security, and And as a with the at While a this of empirical research is for contested norms and layers of study of the of the at the offers of A Theory of Contestation’s three practices of norm validation social, and as applying to all three norm types at all three stages in the process of norm and While in principle all global should have access to contestation, in current global governance this is not the case, and sectoral that access to contestation Figure 1 the stakeholder to access contestation with reference to A Theory of Contestation’s typology of norms (in the and the stages of norm implementation (i.e., and on the to the theory of contestation, the research questions who has access to contestatory practice in this By which means access to contestation be to a wider range of What of may be in order to enhance this These are questions for research on following which an from Figure 1 in my first article in this offers a on the that is in order to institutional pathways in order to establish access to contestation for the involved stakeholders. In distinction to A Theory of Contestation’s use of levels of governance, this to my critics has up on a of the and societal locales of norm contestation. While A Theory of Contestation addressed the regulatory context of global governance work would benefit from studying the interplay between the regulatory global governance context and the customary societal Figure 1 reflects this interplay and presents a for pathways in order to enhance and/or establish stakeholder access to of on the of from A Theory of Contestation, Figure and in this Figure three methodological first, the sites where norms are contested at the and micro layers of given society the second, the stages of norm implementation the and third, the practices of norm validation on the of contestation (the Following A Theory of Contestation’s core argument about the principle of norms are in principle contested and that this effect in international relations is enhanced by in the that the three practices of norm validation (i.e., social and cultural whether stakeholders have access to contestation or whether this access is restricted to one or two out of the three possible practices of The on the meso of society the heretofore and societal especially in international relations question raised by Havercroft and Duvall is whether contestation is to what A Theory of Contestation the “referring stage” that is, the in the process of norm implementation where norms to become by the involved stakeholders. the normative impact of the bifocal approach for in Figure 1 the the in the process of norm implementation where stakeholder access to contestation should to the about This putting practice the reference to a fundamental norm and the and process of engaging in the steps in order to the norm with reference to appropriate standards and This where stakeholders to be enabled to reference to a given norm when in negotiations about their has been My to this important question is therefore that the that the of contestation Figure 1 in my article in this an that is meant to that, on the type of and the context of norm implementation some may have access to all three types of will be in that allow for access to one or two out of the three possible is, the normative of meaning-in-use that is re-enacted through contestation normative grids that are more with the background experience of some than with that of that on the than the of norm validation will be to identify and norms are contested, that is, stakeholders over the meaning of a on the therefore that are in access to contestation. those with access to all three dimensions of norm validation are enabled to engage in norm contestation. to the of the the social order in this is the case for the of the use a common from legal By contrast, the of stakeholders and of norms access to contestation. A Theory of Contestation to researchers to account of and engage with such of As noted in my summary of the book in this access to contestation is the the point is to think about of stakeholder through more engagement with the norms that matter to stakeholders in as a means of reducing political conflict in global governance. conditions for access to contestation are through appropriate the legitimacy gap that is defined by access to contestation will a situation of an remains to be through the struggle of global and by which means the legitimacy gap be remain for international relations These I would should be addressed by on the ongoing conversation between recognition theory and international relations norms not all, of the to this may with Havercroft and to the use of an constructivist label in order to enhance A Theory of Contestation’s as a reference point for theoretical in international relations theory. As they the label of “agonistic constructivism” would provide a distinction of my approach from both and “critical While I have with that their distinction makes when applying a of critical theory. Here I to critical is defined to account the wide range of theoretical that engage in research towards a more and global

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