The “Gap” Problem: Law in Books vs. Law in Action

by Yingxin (Emma) He

What will happen after an international judicial body makes a binding decision that requires one state to comply with its obligations under international law? It is quite natural for a lawyer to assume that it will establish a deterrent for other states and will lead to compliance with the law in the future. However, reality often tells another story: despite such binding judicial decisions, what follows could be repetitive breaches of the same obligation on the same ground.

It may seem counterintuitive, but this is in fact what happened in the Al-Bashir Case that came before the International Criminal Court (ICC) in the past decade. The ICC has issued several separate decisions, all of which came to the same conclusion, namely, that an incumbent head of state should not enjoy immunity from arrest made by another state in order to realise the adjudicatory and enforcement jurisdiction of the ICC (at least in the cases where there is a UN Security Council referral). The court raised various legal grounds to support its finding. However, it seemed that none of these decisions had any practical effect on the implementation of the court’s legal framework.

My current research on the immunity issue focuses on the “pure legal questions”, as did the ICC in all of its decisions. However, after seeing what has happened in reality, I couldn’t help but ask myself whether it would it make any difference, even if I found out the perfect legal solution?

With this doubt in mind, I attended the Socio-Legal Lab, where we looked into an underestimated problem: the gap between law in books and law in action. First of all, we discovered the gap through an inspiring dialogue between lawyers and social scientists. Secondly, we were presented with interdisciplinary methodological tools that can help us fill the gap. Finally, we reflected on the whole issue and raised the question of whether it would be possible to avoid such gaps.

 

Discover the Gap

The “discrepancy between the law as a body of rules and as an institutionalised form of practice”[1] has not been stressed enough in legal studies. My way of thinking as a law student shapes how I approach research questions. In a case-analysis exam, what I am looking at is clear and straightforward: the positive law and the already abstracted facts. What is/are the applicable law(s)? How should we interpret it/them? Can the facts be subsumed under the law? I was never asked on an exam to raise questions about how the law came into being in the first place (unless it is useful to the interpretation of law), or how the law would be enforced afterwards.

There is nothing wrong with limiting the scope of research within certain bounds, but the Al-Bashir Case demonstrates how important it is to understand a legal dispute in a broader context. Immunity is not only a rule in international law, but also an institutionalised form of social practice in international relations. Without acknowledging the existence of the gap, the mere application of legal logics is just a castle in the air.

 

Fill the Gap

Simply saying “okay, I see, there is a gap” is not enough. We have to address it through methodological lenses. This is where interdisciplinarity comes into play. The theories of international relations are extremely useful in explaining states’ behaviours in international law. For example, in order to understand either the positive or the normative side of international law, it is inevitable to touch upon the concepts of state, state power, and state interests, which draw a connection to realism in international relations.[2] Furthermore, one may ask how international law could function absent coercive enforcement mechanisms. To be more concrete, what are the incentives for states to obey international law? In one study on state behaviour in international law based on a rational choice approach, the author argues that reputation, reciprocity, and retaliation are the three major reasons for states to comply with international law.[3] Theories and research methods from other disciplines, especially from social sciences, provide helpful tools to fill the gap.

 

Avoid the Gap?

Meanwhile, looking at law from an “outsider” perspective does not undermine the value of legal studies, nor would interdisciplinary research methods exclude the traditional legal logic. On the contrary, these (regrettably) unconventional research methods, at least for lawyers, help the “insiders” to understand law better by reflecting on their taken-for-granted assumptions and concepts.

We can still study law within its autonomous system, while having in mind that it is only one of many ways to view and describe the world.[4] Not every research has to solve the “gap” problem, but it is important to acknowledge the disembeddedness of law and to address it by taking the discrepancy into consideration. By borrowing from different disciplines, legal scholars can enrich their discipline and, in the end, contribute to bridging the gap.

The gap between theory and practice has always existed and will continue to exist. The Socio-Legal Lab opened a window for us to consider this problem. To become aware of the gap is the first step, the second is to utilise instruments from different disciplines to fill it. Even if this goal is too ambitious for an individual scholar’s work, there is no need to be frustrated, because each of us can still contribute to building a bridge to cross the gap.

 

Yingxin (Emma) He is a PhD student at the Faculty of Law, University of Göttingen. She conducts research on head of state immunity before international criminal courts, with special regard to the challenges and possibilities for non-party states to the Rome Statute to implement ICC arrest warrants.

 

References

[1] Banakar, Normativity in Legal Sociology (2015), p. 41.

[2] Steinberg, ‘Wanted – Dead or Alive: Realism in International Law’, in Dunoff and Pollack, Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013), p. 167.

[3] Guzman, How International Law Works: A Rational Choice Theory (2008), pp. 33-48.

[4] Supra note 1, p. 55.

 

 

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