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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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How can we explain variation in the success of judicial discourses? Constructivist approaches content that states can be talked out of non-compliance interests in the course of judicial discourses, if arguing is effective. In order to conceptualise endogenous interests, scholars recurred to the Habermasian theory of communicative action.13 Not the least because this approach generates either personally or institutionally fix hypotheses on persuasion and cannot explain much variation in the success of discourses, the research focus shifted from whether arguing takes place to the conditions under which arguing is successful. ‘Second generation’ arguing approaches draw on the Habermasian discourse theory to identify conditions under which arguments make a difference.14 Public settings with broad access and transparency, high norm density and high institutionalisation foster effective arguing, because these variables approximate ideal discourse conditions, with a common life world or public opinion as a substitute thereof.15 ECJ procedures are highly institutionalised and have hardly changed over time.16 Hence, judicial discourses should foster effective arguing. By contrast, access and transparency are constantly low and do not further effective arguing: only the advocates of the parties participate, oral exchanges are not generally public and the Court deliberates in closed settings (ECJ rules of procedure Art. 56, 27). Not only do expectations deviate, the variables are also constant across ECJ cases and cannot sufficiently explain why only some judicial discourses are effective.

Another approach draws on social psychology.17 In this perspective arguing fosters ideational change, if actors are cognitively open to become persuaded. This 13 Although there is no empirical evidence for such informal bargaining in publicly accessible materials (protocols of European Advocate Generals, ECJ judgments), this alternative explanation is tested in part V.

14 In this mode of action, actors are consciously motivated to become persuaded by good arguments J. Habermas, Theorie des Kommunikativen Handelns. Band 1 Handlungsrationalität und gesellschaftliche Rationalisierung (Frankfurt: Suhrkamp, 1995); H. Müller, ‘Arguing, Bargaining and all that’ p.

402ff.; H. Müller, ‘Arguing, Bargaining and all that’, p. 402ff.

15 J. Habermas, Moralbewußtsein und kommunikatives Handeln (Frankfurt am Main: Suhrkamp, 1983);

Deitelhoff and H. Müller, ‘Theoretical Paradise’ p 167ff.

16 These approaches assume that contextual variables accelerate the quantity of argumentative speech acts, which automatically translates into persuasion so that arguing is effective, once it takes place.

(T. Risse, ‘Konstruktivismus, Rationalismus und die Theorie Internationaler Beziehungen – Warum empirisch nichts so heiß gegessen wird, wie es theoretisch gekocht wurde’, in G. Hellmann, K. D.

Wolf and M. Zürn (eds), Forschungsstand und Perspektiven der Internationalen Beziehungen in Deutschland (2002), pp. 1–26).

17 There is one important exception: The ECJ can issue financial penalties since 1993 (Art. 228 ECT) if states fail to comply with its first judgment.

150 Diana Panke is more likely to be the case if they have few prior believes and attribute moral authority to other speakers, as well as if issues are new, environments are changing, the uncertainty is high due to policy failures, or if interactions are de-politicised and take place in an in camera setting.18 Again, institutional and contextual variables that induce effective arguing in judicial discourses, such as the level of transparency or the moral authority of judges, are constant and cannot explain variation in the success of judicial discourses. By contrast, other variables indicate

that judicial discourses should hardly succeed in talking states into compliance:

States’ non-compliance interests are eminently strong since they did not opt for pre-judicial settlements, issues are not new and environments are unlikely to change rapidly during the discourse.

Under what conditions can consensual norm interpretations emerge from judicial discourses and when they are likely to end in dissent? State of the art approaches seem to have difficulties to explain why states are only sometimes talked into compliance. This section departs from these approaches regarding one essential element. The latter do not theorise that not every communicated argument is good, but can as well fail to be persuasive. The approach introduced here, by contrast, analyses the quality of arguments and claims that this is crucial for the varying effectiveness of discourses.

Judicial discourses accelerate argumentative speech acts. Yet, exchanging arguments is not sufficient to induce ideational changes, since not every argument is persuasive per se. Only good arguments can be convincing and possibly end norm violations. What characterises a good argument? Which ideas might change actors’ compliance interests? Simply put, the answer is that good arguments have to be intersubjectively valid. This requires that arguments are exchanged and that actors share a yardstick which allows them to equally assess the quality of arguments in a discourse. Truth, righteousness and appropriateness are three standards to intersubjectively evaluate the goodness of communicated ideas.19 If actors share a common conception of how to assess the quality of truth, normative and value-based claims, they can commonly factor out good from less compelling factual, normative or value-based arguments, substitute old by better ideas, and incrementally arrive at a consensus. A truth paradigm encompasses ontological, epistemological and methodological elements. Exchanged causal or factual arguments are conducive to ideational change and consensus, if the actors adhere to the same scientific paradigm and share expertise on the subject matter.20 Similarly, norm generating discourses can end in consensus, if actors share a standard of righteousness on which they measure how certain aims, procedures or scopes of norms express or hamper the fulfillment of their common interest. However, sharing a standard of righteousness does not help to solve questions of truth or vice versa. Common evaluative standards have to fit the type of arguments made.

Unlike these discourses, judicial discourses deal with contested norms rather than

truth claims or common interests.21 Once norms are contested, a dilemma emerges:

in order to argumentatively solve norm interpretation conflicts, it would be necessary that actors consent on which common interest is expressed by a norm’s 18 J. T. Checkel, ‘Why Comply?’, p. 553ff.

19 Ibid., pp. 562–3.

20 J. Habermas, Theorie des Kommunikativen Handelns. Band 1’, p. 45.

21 J. Habermas, Theorie des Kommunikativen Handelns.Band 1’, p. 26–7, 114ff.

Why discourse only matters sometimes 151 aim, procedure or scope, while the very fact that a case has been carried to Court indicates that there is dissent. Nevertheless, the parties of norm interpretation disputes are not trapped in talking at cross-purposes. Judicial discourses offer an expedient: different judicial methods of interpretation allow specifying what norms are about and to which situations they should be applied. In this sense, judicial methods of reasoning serve as additional yardsticks to commonly measure the quality of arguments. They differ in their interpretational scope. The broadest scope has the historical method of judicial interpretation, which specifies scope and content of legal norms through references to the initial will of the norm-creators.22 The teleological method is only slightly more specific, since it specifies the purpose and content of a norm though analysing the general aim of the broader legal context: What is the purpose of the treaties and how does it relate to the norm in question?23 The directive-immanent teleological interpretational device is more specific than the general teleological means, since it specifies content and scope of a disputed issue (for example, is exception X acceptable?) by analysing the general aim of the norm at hand. The general systematic method is a bit more specific than the general teleological one. It inquires into the broader legal context in order to solve interpretational questions of a norm embedded in the context: Is there another legal norm that delimits or specifies the meaning of the norm in question?

The directive-immanent systematic method of legal interpretation is suited to solve more detailed interpretational issues by analysing the paragraph or article in question in the context of the whole legal norm: Are new concepts introduced in other paragraphs that define or delimit the issue in question? Are there exceptions in other parts of the norm that impact scope and content of the interpretational issue at hand? The wording method aims at solving interpretational differences of great detail by analysing the exact phrasing of the paragraph in question: Are new concepts introduced? How are they defined? Are exceptions specified?

A shared standard of truth is not helpful in effectively solving conflicts over values or vice versa.24 Similarly, not every judicial method of interpretation is suited to solve every interpretational problem. The interpretational scope of problems and judicial methods has to match; otherwise actors simply talk at cross-purposes. Some disputed issues are complex and characterised by imprecise, ill-defined concepts concerning aims, procedures and applicatory scopes, many cross-references, several relevant paragraphs or articles, and complex exceptional

clauses. Other interpretational problems have narrow interpretational scopes:

Contested issues are highly specific and characterised by relatively precise concepts, few and accurate cross-references and clear-cut exceptional rules. Judicial interpretational techniques also vary in their scope. Some are broad, capture norms comprehensively and are suited to solve complex issues (for example, historical or teleological methods), others are narrow, focus on detailed interpretational difficulties and are suited to solve issues of detail (systematic method) or of great detail (wording method). Successful judicial discourses that produce intersubjectively valid consensual outcomes require firstly that the parties exchange arguments, secondly that they share a judicial method and thirdly that the latter 22 J. Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt: Suhrkamp, 1992).

23 H. Rasmussen, On Law and Policy in the European Court of Justice.

24 R. Alexy, Theorie der juristischen Argumentation, pp. 33–50.

152 Diana Panke matches the interpretational scope of problem at stake.25 If these conditions are met, the parties do not talk at cross-purposes but can relate to their arguments in a meaningful manner, can commonly sort good judicial arguments from less convincing ones, and can incrementally develop consensual norm definitions.

National advocates are in close contacts with the responsible ministries and disseminate judicial arguments.26 If European and national advocates establish consensual norm definitions in the course of the one to two years of a written and oral judicial discourse, national advocates diffuse them together with the supporting arguments back into the ministries.27 This fosters domestic persuasion processes. If ministries at a minimum accept the legal expertise of their own advocate, they learn that judicial experts consider a particular interpretation as superior and that their initial norm interpretation cannot be justified any longer by valid good arguments. Actors who accept that non-compliance cannot be argumentatively justified lack means to coherently and plausibly excuse norm violations vis-à-vis European enforcement authorities.28 Argumentative entrapment changes the parameters for action: Continued non-compliance would either be irrational (violating new believes on which interpretations enforcement authorities might accept) or inappropriate (violating integrity, consistency or credibility norms) for affected states. Hence, successful judicial discourses facilitate swift

policy changes that end norm violations. The hypothesis states:

Consensual norm interpretations leading to quick shifts into compliance are likely to be achieved in judicial discourses, if the parties do not argue at cross-purposes but share a judicial method fitting to the interpretational scope of the contested issue.

IV. Case study

This section analyses the incorrect transposition of the European Drinking Water Directive (DWD, 80/778) in Germany, which had been referred to the ECJ in 1990 (case 237/90). This single case study has in-case variation on the independent variable and, therefore, reflects a most similar systems design. At the same time, it keeps country-specific variables (for example, political or legal culture, political and administrative capacities) and policy-field characteristics (for example, domestic structure of interest organisation) constant.

The case

Drinking water is one of the most highly regulated aliments. Hence it comes at no surprise that the DWD defines more than 60 quality standards for drinking water.

25 J. Habermas, Theorie des Kommunikativen Handelns. Band 1, pp. 412–39.

26 An example for a mismatch would be a narrow interpretational method applied to a complex problem. Interpreting different articles or paragraphs with the wording method can lead to completely different interpretations of the whole norm. Yet, the wording technique of interpretation cannot solve the problem of which article or paragraph (and their associated interpretations) should be given priority.

27 Interview ministry of finance, October 2004.

28 Ibid.

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