The tension between power and principle has long been central to international legal dis-course. Instrumentalism—the idea that international law can change behavior, but only by creating constraints and opportunities that affect state interests—straddles this tension. This chapter chronicles the rise, role, and contestation of instrumentalism in international legal thought. On its own terms, instrumentalism is a descriptive tool to explain how power and norms interact to shape state behavior. Critics, however, worry that instrumen-talism legitimates power politics by clothing them in the trappings of principled legal ar-guments. Arguments that international law is not “law” or is widely ineffective—arguments that critics fear are aimed at delegitimizing international law as a normative system—have fueled these fears. The chapter argues that instrumentalist thinking has largely survived these critiques. To be sure, instrumentalist scholarship often does aim for policy relevance, and it does view law’s effectiveness as contingent on political and so-cial factors. But instrumentalism continues to flourish in both academic work and interna-tional legal practice, in large part because its usefulness as a descriptive tool has been used to understand how to make international law more effective.
The chapter concludes by considering a challenge to instrumentalism from closer to home. Borrowing from behavioralist studies in domestic law, scholars have begun to argue that the assumption of rationality often associated with instrumentalism is flawed. Instead, these writers emphasize the role of psychological biases in decision-making by international actors. This behavioral turn is promising. It remains to be seen, though, whether it will be more successful than prior critiques in modifying the basic instrumentalist framework.
Tuesday, April 5, 2016
Timothy Meyer (Vanderbilt Univ. - Law) has posted Instrumentalism (in Fundamental Concepts for International Law: The Construction of a Discipline, Jean d’Aspremont & Sahib Singh eds., forthcoming). Here's the abstract: