Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

Abstract

The question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

Rethinking causal explanation in interpretive international studies

“…4 The ambition to move beyond constitutive explanations and to explore what an interpretive approach to causal explanations might consist in is laudable, and one which I share. In particular, such a move deals head on with the problem that while interpretive approaches are apt at capturing habitual action and the reproduction of norms, identities, and social practices, they have limited abilities to account for change (Hopf, 2018;Stappert, 2020). Many interpretive scholars are, after all, also interested in why things happen, making the move toward causal inquiry a crucial one.…”

Methodological Considerations in the Professional Accreditation Research

“…Therefore, a community of practice (COP) notion has been formulated to provide a sense-making mechanism about occupation practices (Feldman, 2020;Stappert, 2020). Stappert's (2020) findings point to the practitioner's disposition to create practice meaning within a COP (Castanelli et al, 2020). Therefore, a COP creates a structure within which a practitioner's dispositions and strategies get demonstrated (Tan & Chan, 2018).…”

Affect, practice, and change: Dancing world politics at the Congress of Vienna

“…Other PT contributions, while continuing to concentrate on reflective deliberation, have called this focus on exogenous conditions as the sole stimulus for change into question, demonstrating that significant political changes can also originate in practices themselves (Schindler and Wille, 2015;Stappert, 2020). However, identifying different interpretations of past events as the reason for such changes still disregards the transpersonal character of practices.…”

“…Studying affect as processes of becoming, what Todd Hall and Andrew Ross (2015: 848) captured in the term 'affective dynamics', supplements recent PT discourses that locate politically significant practice changes in the cognitive abilities of practitioners. There is disagreement if these abilities are being stimulated only by exogenous factors, making endogenous factors negligible, or if substantial changes might not also be rooted within practices themselves (Schindler and Wille, 2015;Stappert, 2020). However, there is agreement that such processes of change are being initiated by deliberate reflection.…”

“…Almost a decade has passed since Raymond Duvall and Arjun Chowdhury (2011: 337) observed that ‘the analysis of practices falls short of offering satisfying ways of theorizing change in international politics.’ Even today, while pooling many different approaches, practice theory (PT) is united in identifying the issue of change as requiring further attention (Cornut, 2018; Hopf, 2018; Loh and Heiskanen, 2020; Mulich, 2018; Schindler and Wille, 2015; Stappert, 2020). To address this issue, this article brings PT into conversation with the study of affect (Åhäll, 2018; Fierke, 2013; Hutchison and Bleiker, 2014; Koschut, 2018), as so far affect has only been mentioned ‘ en passant ’, to use Monique Scheer’s (2012: 199; emphasis in original) words, when it comes to practices, apart from some notable exceptions (Bially Mattern, 2011; Solomon and Steele, 2017).…”