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«Why discourse matters only sometimes: effective arguing beyond the nation-state DIANA PANKE* Abstract. Pre- and post-agreement discourses are an ...»

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Review of International Studies (2010), 36, 145–168 Copyright  British International Studies Association


Why discourse matters only sometimes:

effective arguing beyond the nation-state


Abstract. Pre- and post-agreement discourses are an integral part of international relations.

Yet, they only matter sometimes as an empirical analysis of European judicial discourses

shows. State of the art Habermasisan and social psychology approaches on effective arguing cannot sufficiently explain variation in the success of discourses. This requires a fine-grained perspective: Only if actors share yardsticks fitting to the issue at stake, they can commonly assess the quality of arguments and incrementally develop a consensus. If such issue-specific reference standards are absent, actors talk at cross-purposes and dissent prevails. The article empirically illustrates the importance of intersubjective validity for the effectiveness of discourses and tests its central claim against alternative constructivist and rationalist explanations.

Introduction Discourses take place in many political, judicial and societal arenas within and beyond nation-states. They are alternatives to bargaining, voting or authoritative decision making and can foster consensus in pre- or post-agreement interactions.1 Compared to pre- agreement interactions, post-agreement interactions are rarely in the center of attention, although discourses matter in these settings, too. Judicial discourses take frequently place in international courts, such as the European Court of Justice (ECJ), the Court of the Andean Community, the Court of the European Free Trade Association. International judicial discourses are good laboratories to analyse dynamics of arguing. The density of exchanged arguments is very high and judicial discourses are, in this sense, most likely settings for successful arguing. At the same time, effective arguing is very difficult before courts, since the parties have eminently strong interests, because they maintained non-compliance despite being detected and did not negotiate pre-judicial settle- ments. In this sense, non-complying states are not open to persuasion. Drawing on the example of the ECJ with its mixed record of effective judicial discourses, this article analyses the conditions under which judicial discourses promote compliance.

* I would like to thank the participants of the deliberation workshop of the ECPR joint sessions in Helsinki 2007, the three anonymous reviewers, and my former colleagues from the Free University of Berlin for all their constructive comments.

1 For example, N. Deitelhoff and H. Müller, ‘Theoretical Paradise – Empirically Lost? Arguing with Habermas’, Review of International Studies, 31 (2005), pp. 167–79; T. Risse, ‘International Norms and Domestic Change: Arguing and Communicative Behavior in the Human Rights Area’, Politics and Society, 27

–  –  –

This requires tackling the more general question: Under which conditions can discourses foster consensus and when do they fail? The key to the answer is that the quality of arguments matters. If actors share a common standard for the assessment of the goodness of exchanged arguments, they can filter unconvincing and bad from convincing and good points and thereby incrementally develop a consensus. If they don’t have a common yardstick to evaluate the quality of claims, intersubjective validity cannot be achieved. Consequently, actors talk at crosspurposes although they exchange arguments and discourses end in dissent.

The argument proceeds in five steps. The next section introduces the EU infringement procedure, demonstrates that judicial discourses take place for all cases that reach the ECJ, and illustrates that not all judicial discourses succeed in quickly fostering compliance (II). Why is it that arguing takes place in all cases but is not always effective? The subsequent section develops a theoretical explanation (III). Unlike Habermasian arguing or social psychology approaches on persuasion,2 this article inquires into the quality of arguments in order to explain the varying success of discourses. Not every argument is per se good and suited to convince others. Arguing is only effective if actors exchange arguments and share a yardstick based on which they can commonly evaluate the quality of claims.

Under these restrictive scope conditions, participants of a discourse can equally sort good from unconvincing arguments and thereby incrementally develop a consensus. If the parties lack a common standard with which they can intersubjectively assess the goodness of exchanged ideas, they talk at cross-purposes and discourses end in dissent – even though we might observe pure arguing. As a consequence, persuasion fails and non-compliance prevails. The German drinking water case illustrates this theoretical claim (IV). Germany violated the European drinking water directive (DWD) though a legal transposition that restricted the applicatory scope of the DWD and granted de facto many exceptions. While this saved compliance costs, it hampered the effectiveness of EU law. The European Commission opened an infringement procedure and referred the case to ECJ. A judicial discourse started, but failed in the first stage, since the parties lacked a common standard on which the quality of exchanged arguments could be equally evaluated and talked at cross-purposes. Later on, the advocates used arguments to which they could mutually relate in a meaningful manner and the judicial discourse became effective. Non-compliance could no longer be defended with good arguments and the argumentatively entrapped government quickly adapted the German drinking water policy in line with a demanding water quality approach.

Alternative constructivist arguing and persuasion approaches as well rationalist enforcement, bargaining and principle-agent theories cannot sufficiently account for these compliance dynamics (V). The article concludes with the finding that intersubjective validity of arguments is the key to successful discourses. This requires that arguments are exchanged, that actors share quality yardsticks, and 2 For example, N. Deitelhoff and H. Müller, ‘Theoretical Paradise’, pp. 167–79.; R. Perloff, The

Dynamics of Persuasion (Hillsdale, NJ: Erlbaum Associates, 1993).; T. Risse, ‘“Let’s Argue!”:

Communicative Action in World Politics’, International Organization, 54 (2000), pp. 1–39. J. T.

Checkel, ‘Why Comply? Social Learning and European Identity Change’, International Organization, 55 (2001), pp. 553–88. H. Müller, ‘Arguing, Bargaining and all that. Reflections on the Relationship of Communicative Action and Rationalist Theory in Analysing International Negotiations’, European Journal of International Relations, 10 (2004), pp. 395–435.

Why discourse only matters sometimes 147 that the type of arguments fits shared evaluative standards. Only than, participants can commonly sort unconvincing and bad from good and convincing claims and incrementally arrive at a consensus. For example, truth-claims require a shared scientific paradigm; normative arguments a shared idea on righteousness. If either common evaluative standards are lacking or do not fit the type of arguments, discourses fail because the actors cannot meaningfully relate to each other but argue at cross-purposes. Common lifeworlds are important for effective arguing,3 since they inhibit shared reference standards for the evaluation of the quality of ideas. The presence of a European lifeworld is helpful, but not sufficient for effective arguing. Even in the EU, every discourse risks dissent, because a European lifeworld competes with domestic or party-political ones. Hence, if the meaning of a particular norm is contested, such as in the German drinking water case, a shared European lifeworld is too broad to decide which competing interpretation is superior. In such hard cases for effective arguing, judicial discourses offer an expedient: Judicial methods of interpretation serve as additional yardsticks to evaluate the quality of arguments. Yet, they only foster consensus, if actors exchange arguments and share methods of legal reasoning whose interpretational scope fit the interpretational scope of the problem at stake.

II. The puzzle

International cooperation generated a wide range of international law. Yet, violations occur and delimit its effectiveness.4 In response, international institutions developed various compliance restoring systems that often encompass judicial adjudication.5 Unlike domestic courts, international courts lack a legitimate monopoly of force as a last resource and are bound to talk states out of non-compliance. This holds also true for the EU, where member states are responsible for the legal and practical implementation of European law, but occasionally fail to do so.6 If the European Commission detects non-compliance, it opens infringement proceedings (based on Art. 226 ECT).7 In a first stage, the Commission seeks to solve the case in bilateral interactions.8 If that fails, the Commission will refer it to the ECJ.

Judicial discourses start, once cases reach the Court, and end with either a withdrawal of the case or an ECJ judgment. Before the ECJ, the parties do not debate political aspects,9 but European and national advocates engage in two-stage 3 N. Deitelhoff and H. Müller, ‘Theoretical Paradise’, pp. 167–79.

4 K. Raustiala and A. M. Slaughter, ‘International Law, International Relations and Compliance’, in W. Carlsnaes, T. Risse and B. A. Simmons (eds), Handbook of International Relations (London: Sage Publications, 2002), pp. 538–58.

5 J. M. Smith, ‘The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts’, International Organization, 54 (2000), pp. 137–80.

6 M. Zürn and C. Joerges (eds), Law and Governance in Postnational Europe. Compliance Beyond the Nation-State (Cambridge: Cambridge University Press, 2005).

7 M. Mendrinou, ‘Non-Compliance and the European Commission’s Role in Integration’, Journal of European Public Policy, 3 (1996), pp. 1–22.

8 J. Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’, International Organization, 56 (2002), pp. 609–43.

9 F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’, Modern Law Review, 56 (1993), pp. 19–54.

148 Diana Panke

Figure 1. Delay of compliance after judicial discourses.10

judicial discourses. The written stage deals with matters of fact and legal issues of how to understand the norms in question. A Judge-Rapporteur summarises the arguments in a confidential report to the ECJ. Than, the oral procedure starts, in which the advocates solely concentrate on how to interpret content and scope of disputed norms. After all judicial arguments are exchanged, the European Advocate General prepares a written opinion for the ECJ, who than decides the case by consensus.

Judicial discourses induce the use of arguments and of judicial methods of interpretation, while bargaining is not deemed as appropriate.11 Although judicial discourses take place in all ECJ cases, they only sometimes facilitate domestic adaptations and compliance ahead of ECJ judgments. If judicial discourses fail, states are not persuaded to give up their initial norm interpretations, do not initiate and possibly even complete policy changes before ECJ judgments, but tend to delay compliance for at least another and up to 15 years afterwards.12 By contrast, if judicial discourses are effective, states rapidly comply either before ECJ rulings 10 The data stem from the Commission’s annual reports on the implementation of EU law (c.f.

{http://europa.eu/generalreport/en/rgset.htm} chapters XXIII). It encompasses all infringement cases for the EU-12 member states that have been opened after 1978, have reached the ECJ and have been terminated before 31 January 2000. The total number of ECJ cases is 2343, of which 1092 have been withdrawn before a Court judgment. The duration of non-compliance is measured by the days between the ECJ judgment and the termination of the case. The European Commission is responsible for the latter and bases its decision on its assessment of compliance with the judgment.

11 C.f. ECJ rules of procedure Art 40, interview former member of the ECJ, June 2005, interview European Commission, October 2005; N. G. Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia: University of South Carolina Press, 1989). H.

Rasmussen, On Law and Policy in the European Court of Justice. A Comparative Study in Judicial Policymaking (Dordrecht: Martinus Nijhoff Publishers, 1986). R. Alexy, Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung (Frankfurt: Suhrkamp, 1983). Interview European Commission, October 2005, interview former member of the ECJ, June 2005; C. Gulmann, ‘Methods of Interpretation of the Court of Justice’, Scandinavian Studies in Law (1980), pp. 187–204.

12 L. J. Conant, Justice Contained. Law and Politics in the European Union (Ithaca, NY: Cornell University Press, 2002).

Why discourse only matters sometimes 149 or quickly complete already ongoing legal changes within less than a year after judgments.

Figure one shows that approximately half of the cases are promptly solved once judicial discourses ended. Even if some quick settlements were instances of successful compliance bargaining between a state and the Commission in the shadow of the Court, the figure indicates that judicial discourses are neither always successful in facilitating compliance nor is it likely that they always fail. Why is judicial arguing sometimes successful?

III. Theoretical argument

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