Venzke: The Practice of Interpretation in International Law: Strategies of Critique

Ingo Venzke (Univ. of Amsterdam - Law) has posted The Practice of Interpretation in International Law: Strategies of Critique (in International Legal Theory: Foundations and Frontiers, Jeffrey Dunoff & Mark A. Pollack eds., forthcoming). Here's the abstract:

The practice of interpretation brings the law to life. It takes part in shaping and making the law. What then is this practice of interpretation? The present chapter distinguishes four different approaches to that question in light of their strategy of critique—whether that critique is formalist, instrumentalist, realist, or immanent. The Chapter first discusses the well-received internal critique in the guise of formalism, followed by external critique in the guise of instrumentalism. These two strategies are united in their focus on what interpreters should do—which interpretation to adopt and how to justify it. A cursory overview of concrete interpretative practice then shows that actors tend to adopt one or the other approach not depending on strong theoretical commitments, but rather strategically with a view of defending certain claims before specific audiences. One may thus well ask what is really going on. Realism, in turn, highlights interpretations as expressions of power and bias. While appealing, realism faces difficulties of its own when it tries to account for the role of reasons and when it commits to strong empiricism. The Chapter finally places emphasis on the strategy of immanent critique. It presents and discusses immanent critique by asking how that strategy of critique thinks about the possibility, direction, and mode of change. In conclusion, the Chapter connects the discussion of different strategies of critique to arguments in the troubled, crisis-prone present.