‘Law as Toolkit’: Towards a Sociology of Culture Approach to International Law Alexis Galán In this short piece I propose a sociology of culture approach to international law. I assume that international law is a cultural product and that through its symbols, meanings, and signs it influences and has a causal role in the constitution of global affairs. For that, I draw on the sociological and socio-legal literature on culture. More concretely, it relies primarily but not exclusively on Ann Swidler’s notion of ‘culture as toolkit.’1 For her, culture influences behaviour by providing the resources and means from which agents can pursue their own ends and goals. The piece is divided as follows. I begin by sketching the context upon which I propose adopting a sociology of culture approach to international law, namely the perennial question of how much does international law structure international affairs. Afterwards I briefly explain what sociology of culture is and Swidler’s concept of ‘culture as toolkit.’ Lastly, I focus on what would entail to analyse international law through a cultural lens. There, I complement Swidler’s framework with Susan Silbey’s writing on what a cultural analysis of law would be. In general, what distinguishes my approach from other parts of literature that has dealt with cultural aspects of international law is that, following Swidler, that culture not only provide meaning but has a causal role in how social action unfolds. This is not to say that both approaches are mutually exclusive. After all, in order to assess the impact of culture in society, it has to be interpreted first. The difference is the assumption in what role culture has in the constitution of global affairs. I. The role of international law on the constitution of international order. As Anne Orford rightly suggests the relationship between (international) law and (international) order has always been a contested one.2 Right after such a statement, she goes on by specifying several questions which relate to the complicated entanglement between international law and international order. The more interesting question for our purposes is the first one. She posits: PhD Candidate, European University Institute, Florence. Obviously the paper is not for circulation or quote. In any case not that there is something ground-breaking coming out of the pages. 1 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 273 (1986). 2 A. Orford, ‘Constituting Order’, in M. Koskenniemi and J. Crawford, Cambridge Companion 272, 272 (2012). 1 ‘Does international law exists to create and maintain international order?’3 Although she puts it rhetorically, the question pinpoints to a basic intuition that seems widespread within the discipline; that international law does play a role in how international order unfolds. How order is established, produced or constructed is shaped by the normative power of international law performs. The literature has been quite illuminating in underscoring how international law through its tools, techniques, and norms affects the making and unmaking of international order. Martti Koskenniemi in the epilogue of From Apology to Utopia talks of ‘structural bias,’ indicating how international law tends to favour certain interpretations which in turn favour systematically certain states instead of others. Similarly, Antony Anghie in his Imperialism, Sovereignty and the Making of International Law has shown the importance of colonialism in the constitution of international law and in the endurance of inequality due to its lasting influence in the evolution of the international legal order. Many more examples could be included. The point I wish to make is that it is widely accepted that international law plays a role in the constitution of the international order. As such, the belief that law somehow underpins social order is quite pervasive in general within legal discourse. The idea that law reproduces or reflects social order is prevalent in Western legal and social theory.4 It is believed that law allows for the structuring of the world5 by reflecting and reproducing ‘other features and institutions of social life.’6 Not only that, law equally ‘constitutes important aspects of social life by shaping or reinforcing modes of understanding of social reality.’7 What becomes less obvious is the extent to which and how international law helps in constituting international order. If law ‘exists’ at the intersection of diverse structural processes, whatever they are, then it becomes difficult to disentangle what processes are at play and how law operates. This analytical difficulty leads John Griffiths, for instance, to simply accept the inseparability of law from social phenomena and the uselessness of separating law from society.8 Even if we accept the fact that law cannot be separated from society as it is part of society, this should not stop us from analysing that relation in detail. If not because simply assuming the A. Orford, ‘Constituting Order’, in M. Koskenniemi and J. Crawford, Cambridge Companion 272, 272 (2012). B.Z. Tamanaha, A general jurisprudence of law and society 1-10 (2001). 5 R. Cotterrell, ‘Why Must Legal Ideas Be Interpreted Sociologically?’, 25:2 Journal of Law and Society 171, 192 (1998). 6 S.S. Silbey, ‘”Let Them Eat Cake”: Globalization, Postmodern Colonialism, and the Possibilities of Justice’, 31:2 Law & Society Review 207, 231 (1997). 7 R. Cotterrell, ‘Why Must Legal Ideas Be Interpreted Sociologically?’, 25:2 Journal of Law and Society 171, 182 (1998). 8 J. Griffiths, ‘Is law important?’, 54 NYU Law Review 339 (1979). 3 4 2 inseparability of law from social phenomena risks the possibility of obfuscating the supposed importance of (international) law in constituting and reproducing social life. II. Culture and Action: a sociological reading of culture. One way to analyse and grasp the importance of international law in the evolution of international order can be provided through the lenses of sociology of culture. But to adopt a cultural sociology approach requires providing some clues of what does it entail. First of all, and the most obvious one, it involves the study of culture. Unsurprisingly, one can find as many definitions of culture as theorists available. For our purposes I will take culture to be ‘the shared traditions, values, and relationships, the unconscious cognitive and social reflexes which members of a community share and collectively embodied.’9 However, other definitions are equally available.10 Secondly, what drives the study of culture through sociology concerns its importance in the constitution of social life. There is the basic intuition that no realm of society is untouched by culture. This involves not only the idea that ‘language, thought, and expressive culture not only shape the meaning we attribute to material things and human relationships … but also influence one another in ways worth understanding.’11 Hence, culture is understood to be constitutive of social experience and structure ‘by providing meaning and by influencing action.12 Now, this last assertion – that culture influences action - is open to debate. As Mabel Berezin noted not so long ago, there is a double distinction concerning the study of culture sociologically. She dubs it as ‘fissured terrain’ because there is at the core an epistemological disagreement between those that try to ascribe an explanatory role to culture versus those that favour only interpretation.13 Here I follow the latter route. My interest in suggesting a sociology of culture approach lies then in attempting to explain social action in relation with international law through the lens of culture, not on solely interpreting those shared symbolic codes that conform culture.14 W. Ray, The Logic of Culture – Authority and Identity in the Modern Era 3 (2001). See O. Patterson, ‘Taking Culture Seriously: A Framework and an Afro-American Illustration’, in L.E. Harrison and S.P. Huntington (eds.), Culture Matters: How Values Shape Progress 202, 208-209 (2001). 11 J. Kaufman, ‘Endogenous Explanation in the Sociology of Culture’, 30 Annual Review of Sociology 335, 336, footnote omitted (2004). 12 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 31 (2003). 13 M. Berezin, ‘Fissured Terrain: Methodological Approaches and Research Styles in Culture and Politics’, in D. Crane (ed.), Sociology of Culture: Emerging Theoretical Perspectives 91, 95 (1994). 14 I. Reed, ‘Culture as object and approach in sociology’, in J.C. Alexander and I. Reed (eds.), Meaning and Method – The Cultural Approach to Sociology 1, 3 (2009). 9 10 3 Under that sketchy context is where we have to locate Swidler’s influential 1986 article ‘Culture in Action: Symbols and Strategies.’ The article provided an explanatory account of how culture ‘influences’ behaviour.15 In contrast to what was the dominant view of culture (Weberian/Parsonian) of that time - within US sociology - which assumed ‘that culture shapes action by supplying ultimate ends or values toward which action is directed, thus making values the central causal element of culture,’16 she lays down an alternative explanatory model. Culture has causal imprint in how actors pursue their activities, but this is due to the fact that culture is seen as shaping and organizing how individuals act, it does not determine the ends to which those activities are put.17 The first one requires conceiving culture as a ‘toolkit.’ Culture, to begin with, has to be understood not as a ‘unified system that pushes action in a consistent direction.’ 18 Rather, it should be seen as the assemblage of ‘diverse, often conflicting symbols, rituals, stories, and guides to action.’19 In sum, culture is a repertoire ‘from which actors select different pieces for constructing lines of action;’20 it does not define ends in itself, ‘but in providing cultural components that are used to construct strategies of action.’21 Hence, ‘cultural resources are diverse … and normally groups and individuals call upon these resources selectively, bringing to bear different styles and habits of action in different situations.’22 The article then departs from Weber’s understanding of the role of culture in social action. It relies on Geertz’s understanding of culture as providing ‘the vocabulary of meanings, the expressive symbols, and the emotional repertoire with which they can seek anything at all.’23 But contrary to Geertz’s denial of any causal influence of culture, Swidler argues that culture do influence social action, but indirectly. In sum, ‘individuals do not rely on culture to give meaning to their lives; they rely on it to help them find the right words, actions, and rationales to express meaning.’24 There are several aspects of Swidler’s approach that should be mentioned. To begin with, the idea of a ‘toolkit’ emphasizes the importance of agency. Agents are not merely cultural dopes A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 273 (1986). A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 273, 273 (1986). 17 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 277 (1986). 18 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 277 (1986). 19 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 277 (1986). (Footnote omitted). 20 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 277 (1986). Likewise, action should be understood as strategies of action whereby actors simply devise certain actions so as to allow one to reach ‘several different life goals.’ These strategies are chains of action ‘beginning with at least some prefabricated links.’ 21 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 273 (1986). 22 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 281 (1986). 23 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 27 (2003). 24 J. Kaufman, ‘Endogenous Explanation in the Sociology of Culture’, 30 Annual Review of Sociology 335, 341 (2004). 15 16 4 that mindlessly internalize culture. Rather they have their own identities, even if they are shaped by culture. Likewise, culture stops being considered as something internal to individuals but it is ‘outside.’25 This is important because then culture stops being considered uniformly. This goes in two ways. First of all, culture is no longer considered as a homogenous body of meanings, symbols, and rituals. Rather culture is fragmented, loose, variant, and sometimes contradictory.26 Secondly, culture’s power might varied not only on the cognitive resources provided by it but in the different ‘[v]ariations in the ways social contexts bring culture to bear on action.’27 Likewise, the emphasis on agency does not entail that structure is simply put aside. Culture is irremediable social and distinctive from what individuals might conceive of it.28 Thus, Swidler’s account permits underscoring the scope, impact and influence of culture how it interrelates with practices and actors, and to comprehend why and how an agent acted in such a manner. To proceed, we can attempt to analyse how culture affects behaviour through semiotic codes, contexts, and institutions. A semiotic code, ‘a set of relationally defined meanings’, helps us in understanding how knowledge of those diverse meanings affect us. This goes both for thick descriptions a la Geertz and for more superficial codes. As Swidler notices there are occasions in which semiotic codes ‘can be much more discrete, more superficial, and sometimes more contested or political than … usually imply.’29 Hence, attention to semiotic codes can be devoted to observe how they structure relationships even though they might not be ‘deeply held, inescapable relationships of meaning that define the possibilities of utterance in a cultural universe.’30 Moreover, culture as fragmented and used sporadically pinpoints the variance of culture in affecting individuals. It suggests that context should be determinant in how culture is perceived and affected. Sometimes culture will seemingly become more coherent and therefore its influence should be greater. On the other hand, there will be instances in which culture will recede or become as part of the background and its influence will be looser. This importance of context equally pinpoint to the impact of institutions in how ‘culture can have consistent effects A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 31 (2003).Outside has a lot of variance. It can goes for the most abstract level of simply a cognitive model of how to behave up to more concrete institutional settings where culture might be more explicit. 26 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 27 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 31 (2003). 28 See this distinction in M. Emirbayer and J. Goodwin, ‘Symbols, Positions, Objects: Towards a New Theory of Revolutions and Collective Action’, 35 History and Theory 358 (1996). 29 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 33 (2003). 30 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 32 (2003). 25 5 on action even when people’s beliefs are inconsistent, ambiguous, or lightly held.’31 As Swidler notices, ‘institutions are well-established, stable sets of purposes and rules backed by sanctions’ and in turn they ‘create obdurate structures that are both constraints and opportunities for individuals.’32 In turn, institutions ‘structure’ culture by dint of its stable nature of patterned actions. Culture then is channelled and flowed around institutions.33 III. Law as toolkit: the specificity of the legal domain. As indicated at the beginning of the paper, the purpose of this short piece is to suggest analysing international law through a cultural sociological lens. The assumption which drives the suggestion is that international law is a cultural product and through the symbolic resources it provides, it plays a role in the unfolding of the international order. In order to grasp how international law operates as culturally meaningful artefact I take Swidler’s approach. This is what I call heuristically ‘law as toolkit.’ International law is re-conceptualized as providing the symbols, meanings, signs, and course of actions. International law does not provide any values or ends as such, it is seen as providing a set of resources that actors might or might not use, to a large or short extent in order to pursue those goals or ends that actors have. In other words, a cultural sociological analysis of international law would argue that ‘[international] law does more than reflect or encode what is otherwise normatively constructed;’ rather, ‘[international] law is part of the cultural processes that actively contribute in the composition of social relations.’34 My interest then is in emphasizing how international law operates in constituting and structuring modes of action. As it is obvious by now, my general framework is provided by Swidler’s. Nevertheless, in order to make clearer how a cultural sociological analysis would benefit the understanding of international law it becomes pertinent to turn to socio-legal scholars like Susan Silbey, who has pursued, sometimes in collaboration with Patricia Ewick, a cultural reading of law. For Silbey, ‘[l]egal forms are constitutive of the forms that social relations and practices take. Law is so A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 32 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 33 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 39 (2003). 34 S.S. Silbey, ‘Making a Place for Cultural Analyses of Law’, 17 Law & Social Inquiry 39, 41 (1992). 31 6 embedded in those relations and practices that it is virtually invisible to those involved.’35 Law forms part of the everyday repertoire that individuals need to operate daily. Furthermore, law becomes the tool that shapes social situations, feeds back upon the law so that the uses to which it is put eventually come to shape the content and substance of the tool, the law itself. It is a dialectical process in which the law is the raw material that legal actors create and work upon at the same time they use it to handle whatever matters demand.36 It is noticeable the similarities between Swidler and Silbey. Law is rejected as mere epiphenomena, as a mere reflection or crystallization of larger structural tendencies, or as a unified and systematic pushing consistently towards one direction. Rather, law is influential but it takes the form of shaping action and in constituting social relations. That is why to conceive law in terms of ‘juridical toolkit’ provides a fruitful way in commencing to grasp how law operates. Law shapes ‘strategies of action’ as it provides ‘the ritual traditions that regulate ordinary patterns of authority and cooperation, and they so define common sense that alternative ways of organizing action seem unimaginable, or at least implausible.’ 37 Indeed, law helps in providing meaning by shaping and constructing those meanings itself.38 Thus, the idea of ‘law as toolkit’ tries to indicate that international ‘law is not merely an instrument or tool working on social relations, but also a set of conceptual categories and schema that help construct, compose, and interpret social relations.’39 International law becomes a specific domain in which actors interact with it at different points and crossroads for different ends and purposes. It simply aids different actors in informing and structuring their actions. It becomes clear now that the pulling of law becomes inverted. The pull of international law does not come from following the rule but in how it affects ‘the limited number of available interpretations for assigning meaning to things and events within any situation or setting.’40 In other words, international law does not provide strictly speaking reasons for actions; rather law provides certain roadmaps for strategies of action. Similarly, the idea of complying or following international law because it is the most appropriate course of action it is partially diminished. The influence of international law comes not because some specific norm provide certain values and S.S. Silbey, ‘A Sociological Interpretation of the Relationship between Law and Society,’ in R.J. Neuhaus, Law and the Ordering of Our Life Together 1, 26 (1989). 36 S.S. Silbey, ‘A Sociological Interpretation of the Relationship between Law and Society,’ in R.J. Neuhaus, Law and the Ordering of Our Life Together 1, 20 (1989). 37 A. Swidler, ‘Culture in Action: Symbols and Strategies’, 51:2 American Sociological Review 284 (1986). 38 S.S. Silbey, ‘Making a Place for Cultural Analyses of Law’, 17 Law & Social Inquiry 39, 42 (1992). 39 Silbey, ‘Legal Culture and Cultures of Legality’, in J.R. Hall, L. Grindstaff, and M-C. Long (eds.), Handbook of Cultural Sociology 470, 474 (2010). 40 S.S. Silbey, ‘Making a Place for Cultural Analyses of Law’, 17 Law & Social Inquiry 39, 46 (1992). 35 7 someone follows it because of the content of the norm is seen as ‘right’ or ‘correct,’ rather international law impacts in how it shape certain actions, independently of the correctness of the norm. Similarly, and admittedly this has been a staple of socio-legal approaches, international law no longer is seen as a top-down chain of command. Rather, it becomes a fragmented, more open, and more plural. Actors do not employ ready-made concepts or are simply vessels in which different structures fill in its content.41 Through their cognitive abilities actors attempt to grasp the situation and proceed in the most ‘effective’ manner so as to follow their own goals and orientations. In this vein, international law has to be seen as a reciprocal process in which actions and interpretations given by individuals to their world – and law and legal institutions as part of the live world – become repeated, patterned, stabilized and these stabilized patterns become part of the meaning system deployed by as well as constraining the individual.42 More importantly, international law stops being considered solely in functional or instrumental terms. As Ewick and Silbey, argue, it should be rejected any ‘purely instrumental or functional notion of law as command, a set of devices for a variety of social purposes – devices that are all either effective or ineffective, purposes that are achieved or not.’43 Hence, a cultural analysis of international law suggests analysing its actual influence in relation with its ‘environment’ from which international law can become meaningful. Thus, international law serves as ‘a set of conceptual categories and schema that help construct, compose, communicate, and interpret social relations,’44 and how it intermingles with other areas of society. In other words, because international law is a cultural artefact, a complex one, it also emphasizes the need to analyse the background conditions upon which law builds up its influence. That said, there is a trenchant difficulty that arises from the study of international law through a cultural sociological lens and to which one has to be mindful: that of the dual status of law as an institution and as a cultural resource.45 On the one hand, law due to its institutional nature provides ‘ordinary patterns of authority and cooperation.’ It creates ‘obdurate structures that are B. Lange, ‘From Boundary Drawing to Transitions: the Creation of Normativity under the EU Directive on Integrated Pollution Prevention and Control’, 8:2 European Law Journal 246, 255 (2002). 42 P. Ewick and S.S. Silbey, ‘The Structure of Legality: The Cultural Contradictions of Social Institutions’, in R.A. Kagan et al (eds), Legality and Community – On the Intellectual Legacy of Philip Selznick 149, 151-152 (2002). 43 P. Ewick and S.S. Silbey, ‘The Structure of Legality: The Cultural Contradictions of Social Institutions’, in R.A. Kagan et al (eds), Legality and Community – On the Intellectual Legacy of Philip Selznick 149, 151-152 (2002). 44 S.S. Silbey, ‘After Legal Consciousness’, 1 Annu. Rev. Law Soc. Sci. 323, 327 (2005). 45 Certainly is not the only difficulty but in my mind the most acute one. 41 8 both constraints and opportunities for individuals.’46 Differently put, law becomes a ‘form of objectified cultural structure,’ meaning that it exists detached from culture insofar as its institutional nature solidifies its form and makes it less malleable.47 Hence, it seems to exist as an external force. It is a sort of structure. Hence, international law is seen as ‘an embedded and an emergent feature of social life, it collaborates with other social structures … to infuse meaning and constrain social action.’48 Thus, law ‘become reconceptualised as supports for action,’ in the different goals and ends that actors might have.49 As an institution law becomes a focal point from which ‘individuals can create culture around [its] rules.’ 50 As a result cultural uniformity might come not because the experiences are identical but because the institutional hurdles that law might pose.51 At the same time, law is a cultural product, even if objectified, hence law not only provides a framework from which culture grows up but its form and content indicates that it is a cultural construct. Because its form is more solidified than others and which requires ‘less by way of maintenance, ritual enforcement, and symbolic elaboration.’52 But that pinpoints to the tension about how to discern the influence of law as an institution from law as providing those symbolic resources. Although law can be perceived at the same time as institution or as cultural artefact – or as Silbey dubs ‘experientially indistinct’53 – for analytical purposes one has to thread careful about what it is influencing what and how. That is precisely what Ewick and Silbey attempts to do when they use the term legality as distinctive from law. For them, legality refers to ‘the meanings, sources of authority, and cultural practices that are commonly recognized as legal.’54 By switching to legality rather than law, they want to provide a better analytical frame form which it is possible to capture the cultural side of law. While that distinction is indeed helpful, still it would be need to be contrasted with the institutional forms and how distinctive it is.55 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 47 O. Lizardo and M. Strand, ‘Skills, toolkits, contexts and institutions: Clarifying the relationship between different approaches to cognition in cultural sociology’, 38 Poetics 204, 208 (2010). 48 S.S. Silbey, ‘After Legal Consciousness’, 1 Annu. Rev. Law Soc. Sci. 323, 346 (2005) (emphasis added). 49 O. Lizardo and M. Strand, ‘Skills, toolkits, contexts and institutions: Clarifying the relationship between different approaches to cognition in cultural sociology’, 38 Poetics 204, 208 (2010). 50 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 51 A. Swidler, ‘Cultural Power and Social Movements’, in H. Johnston (ed.), Social Movements and Culture 25, 36 (2003). 52 R.L. Jepperson and A. Swidler, ‘What properties of culture should we measure?’, 22:4 Poetics 359, 363 (1994). 53 S.S. Silbey, ‘Making a Place for Cultural Analyses of Law’, 17 Law & Social Inquiry 39, 47 (1992). 54 P. Ewick and S.S. Silbey, The Common Place of Law: Stories from Everyday Life 22 (1998). 55 See review by Naomi Mezey of Silbey and Ewick’s book, N. Mezey, ‘Out of the Ordinary: Law, Power, Culture, and the Commonplace’, 26 Law and Social Inquiry 145 (2001). 46 9 IV. Conclusion. It has been the purpose of this short paper to suggest that bringing a sociology of culture approach to international law provides an interesting viewpoint from which we can make sense of international law within international affairs. A more sensitive embracing of culture as a causal determinant - however we define it - can provide us with a more comprehensive and distinctive understanding of international law. International law stops being solely observed as providing goals, ends or objectives; it equally operates in a more diffuse manner. Under a cultural light, international law provides the means and resources that actors can take in order to pursue their own ends and goals. Even though, some of the particulars here expressed might be already known or obvious, the idea of conceiving law as a toolkit, following Swidler’s, brings all that within a potentially interesting framework from which we can understand how international law actually operates and affect international life. It helps in differentiating between structure, agency, and practices. It is open-ended in the sense that how international law shapes or structures global affairs is not quite determined by its form and institutional shape. In other words, a cultural reading of international law as the one here proposed potentially opens up a fruitful venue from which we can capture the intricacies of international law in a more complex world. 10