19 Michigan Journal of International Law 345 (1998)

The Concept of Compliance as a Function of Competing Conceptions of International Law

Benedict Kingsbury

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“Compliance” is one of the central concepts in current and proposed research projects using social science methods to study the effects and significance of international law. Discussion of compliance often proceeds as if the concept of “compliance” is largely shared; that is, as if there was a shared understanding that compliance is adequately defined as conformity of behavior with legal rules, and the real problems are about such matters as measuring, monitoring and improving compliance, and the simultaneous optimization of levels of compliance and rigor of the relevant standards. This article makes the contrary argument that the concept of “compliance” with law does not have, and cannot have, any meaning except as a function of prior theories of the nature and operation of the law to which it pertains. “Compliance” is thus not a free-standing concept, but derives meaning and utility from theories, so that different theories lead to significantly different notions of what is meant by “compliance.” Thus as a research concept, “compliance” cannot stand on its own, but must depend on a stipulated or shared theory of law.

In the case of international law, the elements of the concept of law which must be specified to give meaning to the concept of “compliance” are deeply contested. There is also likely to be considerable variance in concepts of national law that are relevant to “compliance” with interna­tional law. Concepts of “compliance” depend upon understandings of the relations of law, behavior, objectives, and justice. These relations are of central importance to the real-world problems with which interna­tional lawyers are habitually concerned, and must be theorized before there can be any true theory of “compliance.”

The purpose of this article is to challenge the tendency in the existing literature to view “compliance” simply as “correspondence of behavior with legal rules.” This tendency is intelligibly based in a theoretical view that law can properly be defined and understood as a body of rules and expresses a practical concern to get on with the important task of pro­ducing empirical studies of compliance. The logical corollary is that a reasonable degree of conformity between these rules and actual behav­ior is necessary to an efficacious legal system, so that recurrent and widespread non-conformity with rules would usually call into question the existence of law.