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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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A principal-agent approach104 assumes that states know that judicial discourses could end with demanding norm definitions. If governments as principals anticipate which judicial arguments defend their policy interests, they might instruct their advocates to stick to judicial methods that will not produce a deviating norm interpretation. In this perspective, quick compliance with outcomes of judicial discourses could be due to the fact that either national argument won over European ones or that the government changed policy interests independent of judicial discourses and instructed their advocates according to their new interests.

In the drinking water case, European and not German advocates’ arguments had been stronger in shaping the outcome of the judicial discourse.105 Also, there was no alternative source for governmental position changes. The domestic context remained stable since there was no governmental change during the judicial discourse and the period of legal adaptation. Between 1990 and 1992, domestic compliance costs did not decline but even increased as it became clear that the 100 Interview former member of the Bundesgesundheitsamt, May 2005.

101 Bundestag, ‘Plenarprotokoll vom 16.01.1992’, pp. 5967–71; Bundestag, ‘Plenarprotokoll vom 5.02.1992’, p. 55; Bundesratsausschuss für Gesundheit, ‘Empfehlungen zur Allgemeinen Verwaltungsvorschrift über Trinkwasser, 14.09.1992’, p. 484/1, Bundestag, ‘Plenarprotokoll vom 22.04.1993’, pp. 13027–48, interview ministry of the environment, September 2005.

102 J. Tallberg, ‘Paths to Compliance’, pp. 609–43.

103 Interviews former members of the ECJ, June and October 2005; N. G. Onuf, World of Our Making;

H. Rasmussen, On Law and Policy in the European Court of Justice; R. Alexy, Theorie der juristischen Argumentation.

104 M. L. Busch and E. Reinhardt, ‘Bargaining in the Shadow of the Law’, pp. 1–19.

105 M. A. Pollack, ‘Delegation, Agency, and Agenda Setting in the European Community’, International Organization, 51 (1997), pp. 99–134.

Why discourse only matters sometimes 165 water sector required major investments in the new Länder.106 At the same time, the public was not strongly mobilised and environmental organisations did not push the government into compliance, but remained rather inactive.107 Hence, there is no evidence for the claim of the principal-agent approach that the German government changed its policy ideas independent of the judicial discourse, shifted into compliance and afterwards slackened the leash for the German advocate.108 Summing up, none of the alternative constructivist or rationalist approaches sufficiently explains the observed compliance dynamics. Since judicial discourses increase the use of arguments and are in this sense most likely cases for effective arguing, the limited explanatory power of constructivist approaches is particularly surprising. Contrary to these approaches, the theoretical argument advanced in this article places emphasis on the quality instead of the quantity of arguments.

Arguments are exchanged all the time. Yet, only if they are intersubjectively valid, consensual outcomes are likely. This requires that actors can commonly assess the quality of arguments, which, in turn requires shared evaluative standards that fit the problem at hand, for example a shared scientific paradigm for truth issues, a shared standard of righteousness for normative arguments, a complex judicial method of reasoning (for example, teleological) for problems with broad interpretational scope, a narrow one (for example, wording) for precise issues of great detail. Only if these conditions are present, actors can factor out less compelling ideas and incrementally develop a consensus. Otherwise, they argue at crosspurposes and dissent prevails.

VI. Conclusion – the power of judicial discourses

As an alternative to bargaining, discourses are important in international pre- and post-agreement interactions.109 Empirical studies have demonstrated that arguing can be more than just cheap talk.110 Yet, discourses on the local, national, regional and international level inevitably face the risk of dissent, as a glance on the EU infringement proceeding revealed. In order to solve the puzzle of the varying 106 European Court of Justice, ‘Court Judgment of 24 November 1992’; Advocate General, ‘Opinion of the Advocate General’.

107 Bundestag, ‘Plenarprotokoll vom 16.01.1992’, pp. 5967–71; Bundestag, ‘Plenarprotokoll vom 5.02.1992, p. 55.

108 Interview Bundesverband der deutschen Gas- und Wasserwirtschaft, March 2005, interview ministry for the environment, October 2004.

109 Moreover, the institutional logic of judicial discourses should theoretically prevent strategic rational governments from posing restrictions on their advocates. The only change to pursue national interests at least partially before the ECJ is to convince the European advocate and the ECJ judges of the superiority of the state’s norm interpretation. Merely repeating one and the same argument, regardless of the arguments of the other party, or sticking to a judicial method which does not fit to the interpretational problem will neither convince other advocates nor the ECJ judges. In order to be persuasive, it is essential to engage in judicial argumentation and to flexibly react to the arguments of others. Hence, if governments restrict the freedom of maneuver of their advocates, they risk to be unpersuasive and to end up with suboptimal outcomes.

110 Jönsson and J. Tallberg, ‘Compliance in Post-Agreement Bargaining’, European Journal of International Relations, 4 (1998), pp. 371–408; N. Deitelhoff, Überzeugung in der Politik. Grundzüge einer Diskurstheorie internationalen Regierens (Frankfurt: Suhrkamp, 2006); J. Habermas, Faktizität

und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt:

Suhrkamp Verlag, 1998).

166 Diana Panke success of discourses, this article inquired into the contextual preconditions for effective arguing. It started from the claim that the exchange of arguments alone is not sufficient to foster consensus and that the quality of arguments is often neglected but very important to explain the varying effectiveness of discourses.

Hence, it analysed under which conditions arguments can be intersubjectively valid and are, thus, suited to persuade others. Most importantly, participants of a discourse need a common yardstick for the evaluation of the quality of speech acts.

Yet, sharing an evaluative standard is not sufficient for sorting bad or irrelevant arguments from good and persuasive ones, so that a consensus can be incrementally achieved. It is crucial that the common yardstick fits the type of arguments made. Truth-related arguments require a common scientific paradigm; normative arguments require a shared standard of appropriateness, and so on and so forth.

If a common reference system matching the type of arguments made is absent, intersubjective validity cannot be achieved. Consequently, actors will talk at cross-purposes instead of incrementally developing a consensus. Applied to judicial discourses, effective arguing requires that arguments are exchanged and both parties share a judicial method of interpretation fitting to the interpretational scope of the contested issue. A broad method, such as the teleological one, suits issues with broad interpretational scope, while methods with narrow interpretational scope, such as the wording one, fit well to very precise issues. Effective judicial arguing fosters consensus on the interpretation of a formerly disputed norm and entraps governments. If they at a minimum accept the legal expertise of their own advocate, lead ministries learn from successful judicial discourses that their initial norm interpretations cannot be justified any longer with good arguments. Since non-compliance becomes irrational (violating believes on which interpretations enforcement authorities might accept) or inappropriate (violating integrity, consistency or credibility norms) or both, the actors quickly shift into compliance.

The German drinking water case illustrated that rationalist bargaining, principal-agent and enforcement theories as well as prominent constructivist arguing and persuasion approaches cannot sufficiently account for compliance dynamics. In the early stage of the discourse on the possible derogations of the DWD and reporting requirements, both sides were talking at cross-purposes. As expected non-compliance prevailed because the parties did not share a method of legal reasoning that fitted the broad interpretational scope of the problem at stake.

Within the EU, arguing at cross-purposes happens frequently, since compliance is delayed in approximately one-third of all judicial discourses (see figure 1). In the German drinking water case, however, the emphasis of the judicial discourse shifted over time, which was a side-effect of the discourse on a related interpretational issue of the DWD between the same actors. As a result, the problem at stake in the late judicial discourse had a narrower interpretational scope. Concerning the refined disputed issue, the advocates used the narrow wording method that matched the limited interpretational scope of the problem.

This fostered one norm interpretation of the communicational requirements for quality deviations in the DWD, which was intersubjectively valid among the legal experts. Arguing was effective and, as expected, the argumentatively entrapped German government quickly abolished non-compliance.

The German drinking water case illustrated that institutionalised discourses can succeed and foster compliance, but nevertheless face the risk of dissent and Why discourse only matters sometimes 167 continued non-compliance. In how far can the insights from the German case be generalised to other states? Compliance research teaches us that the willingness of governments is crucial to adopt policy changes, but its actual compliance ability might be limited through political, administrative or financial capacity shortcomings.111 Hence, discourses can more readily change state behavior where norm violations are caused by the lack of willingness to comply. By contrast, discourses will be less effective in quickly changing state behavior, if affected states simply lack the capacity to comply, while capacity building is time-consuming.

Apart from capacity requirements, three conditions have to be fulfilled therewith discourses are effective and, depending whether it is a pre- or post-agreement interaction discourse, create a new norm or generate compliance.

For arguing to be effective, the actors need to exchange arguments, must share a standard for the evaluation of the quality of ideas, and the common yardstick has to match the type of arguments. If one of these conditions is violated, actors will talk at cross-purposes and dissent prevails.

Are these insights good news for the effectiveness of discourses in general? Yes and no. This article contributes to the state of the art research in highlighting that intersubjective validity of arguments is crucial for the success of discourses. This requires that actors share evaluative standards fitting to the type of arguments made. Hence, the threshold for successful discourses is high: Even if states exchange arguments and share a common international lifeworld within a particular international organisation, they face the risk of dissent for all issues that touch areas, in which domestic and international lifewords overlap, so that reference systems compete. Moreover, even shared reference systems for particular truth-related or normative issues in pre-agreement interactions do not guarantee successful post agreement discourses. Common yardsticks for truth or for other non-controversial norms cannot help to rank the quality of competing normative claims. Cause-effect propositions on how a particular action hampers or reinforces a norm are meaningless, if the aim or the scope of the norm is contested. Similarly, consensual norms cannot serve as yardsticks for the interpretation of dissented ones in post agreement interactions or for the identification of a common interest in norm negotiations. A consensual norm is not a good means to intersubjectively rank the quality of competing interpretations of a second norm. Firstly, common interests and norms can change over time so that a new norm might willingly express misfit. Secondly, if specific issues rather than the validity of norm as such are contested (for example, what is the applicatory scope of a norm? which exceptions are possible? which procedures are described?), they cannot simply be solved by referring to another norm. In the post-agreement stage, legal discourses offer an expedient for such argumentative dilemma: Commonly applied techniques of legal reasoning can be functional equivalents for a lacking yardstick on righteousness. Similar to other discourses, judicial discourses only foster consensus if three conditions are fulfilled: It is necessary that arguments are exchanged, that actors share judicial methods for the evaluation of their quality and that the interpretational scope of the method of interpretation matches the complexity of 111 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.

168 Diana Panke

the problem at hand. Thus, judicial discourses can increase the effectiveness of policies in legalised regimes and international organisations in helping to remedy non-compliance, even if the common lifeworld among the constitutive states is limited and the norm density accordingly low.

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