Tag Archives: social cognition

Some thoughts on Albert Bandura’s Research Agenda

The work of Albert Bandura is legendary. The breadth of his theoretical work challenges description. Bandura has described subjects as theoretical as comparing the effects of goals and negative self-efficacy (Bandura & Locke, 2003), to as emotionally volatile as the roots of terrorism (Bandura, 2004). Bandura’s social cognitive theory has been described as a way of understanding mass communication (Bandura, 2001a) and human agency (Bandura, 2006). Bandura’s influence is such that he wrote the review of his own theory for the first the Annual Review of Psychology (Bandura, 2001b).

Bandura’s empirical work is also very large. In his empirical work, Bandura not only outlines theories of the world but executes research practices designed to help understand the world. Thus, in his research papers, Bandura refines both his theoretical reach and his methodological approach. In order to briefly describe these processes, I will briefly online three of Bandura’s papers. First, in Bandura, Ross, & Ross (1961), Bandura describes personality in the context of personality. Second, in gender differences article, Bandura and a co-author examining the development of self-regulatory mechanisms (Bussey & Bandura, 1984). Finally, Bandura examined moral disengagement and the state-sponsored killing of prison inmates (Osofsky, Bandura, & Zimbardo, 2005). For each of these studies, a general background is first present. The theoretical discussion and conclusion of the article is then summarized. Finally, the experimental design is discussed. Following this, the papers are compared and contrasted, to emphasize how Bandura’s theories and methods have evolved over time.

The first article to be examined, “Transmission of aggression through imitation of aggressive models,” bridges the gap between behavioralism and cognitivism. In it, Skinner and his co-authors consciously position their research as presenting original problems to the idea that there are no complex mental structure outside of stimulus-response chains. However, in their discussion of results they stick of behavioralist phrases and ideas. The study itself is part of a chain of research, describing itself as building on Bandura & Huston (1961) and quickly followed by Bandura (1965).

Bandura, Ross, & Ross (1961) argued that imitation is a generalizable form of learning, not limited to the repetition of specific actions. This learning was defined as “sufficiently novel patterns of responses which are unlikely to occur independently of the observation of the behavior of a model and if a subject reproduces these behaviors in a substantially identical form.” The research went beyond publications beyond research which argued that children’s actions were merely imitations of what they had observed (Maccoby, 1959) in order to demonstrate that children would engage in behaviors similar to, but different from, those they had seen modeled. The article challenged the ability of behaviorialism to explain this, nothing that responses to stimulus could only (in the behavioralist view of the world) could only be encouraged after similar responses were already provoked. The modeling research that interested Bandura showed that a learner could observe an action and produce a different action, behaving in a manner that required cognitive manipulation of information.

Methodologically, the study would be well received today. 72 students were examined in a 2x2x2 design with 1 control group. Likewise, half of the subjects were males and alf were females, all less than 70 months old. Half the participants saw a model adult of the same sex, while half saw a model adult of the opposite. Additionally, half saw the model act in a hostile manner towards a doll, while half did not. Along with this, Bandura and his co-authors reported results in way that are typical now and that were typical of the older behaviorists. Tests of t values, p values, and tables of results are still regular features of research journals. However, the authors talk about behavioral measures such as the probability of behavior, rather than later formulations such as the average incidence of some behavior.

The second article, published twenty-three years later, is “Influence of gender constancy and social power on sex-linked modeling.” The theoretical construction of the article is new, reflecting the cognitive revolution. The theory is expanded to develop the role of development, a phenomenon missing from Bandura, Ross, & Ross (1961). However, in accordance with Leahy’s (2004) claim of continuity with the older approach, the methods would be recognizable to a behaviorist. The article itself began a collaboration with Bussey, that would lead to three more publications on gender development (Bussey & Bandura 1992; 1999; 2004).

Theoretically, Bussey & Bandura (1984) builds on Bandura, Ross, & Ross (1961). The new paper extends the analysis of the older research into the development of sex roles in children. This is done in a way that respects the lines of research of both Bandura and his colleague, as they cite earlier work by both (including Bandura, 1969 and Bussey, 1979). The substantive focus of Bussey & Bandura (1984) thus begins to make long stretches of time a meaningful part of the experiment, as younger children are compared to older ones. Finally while some phrases are holdovers from Bandura, Ross, & Ross (such as modeling, patterns of responses or behavior, and so on), others (such as information, cognitive, and capacity) reflect the new reality of psychology after the cognitive revolution

The method of is familiar. Two experiments are conducted in Bussey & Bandura (1984), the first being a two-way analysis and the other being a 2x4x2 analysis of variance design. The second experiment in particular recapitulates Bandura, Ross, & Ross (1961): participants are split into either male or female groups, with either male or female models, in one of four treatment conditions. To make sure the reader does not miss this, Bandura & Ross tie both the theory an the procedure to Bandura’s earlier work: “Social power can exert a strong impact on modeling (Bandura, Ross, & Ross, 1963)” (p. 1297). The behavioralist concern for probability of behavior is gone, and the analysis of variance (ANOVA) test appears with its standard P and p values as results.

The third article, published twenty-one more years later, is titled “The role of moral disengagement in the execution process.” The theory in the paper would be incomprehensible to a behaviorist, rather focusing on high-level mental structures over long periods of time with no special reinforcement. The method of this paper is no longer experimental, but rather a correlational study. Osofsky, Bandura, & Zimbardo (2005) follows Bandura’s continuing work on how socialization impacts moral standards (Bandura, 1999, 2002), and is followed by work on moral disengagement in support of the military (McAlister, Bandura, & Owen, 20060.

The theory of the article continues the generalizing trend that began with the transition from Bandura, Ross, & Ross (1961) to Bussey & Bandura (1984). In the first article, the behavior of small children was study. In the second, the socialization of children as they develop into sex roles was examined. In this final piece, Bandura and his co-authors examine the socialization of adults as they do their jobs. The article also continues the trend toward increasing concern over moral behavior. The first publication discussed its findings in the context of imitation, largely ignoring the moral implications of teaching violence. The second more directly addressed concerns of social power and sex roles, and cites Kohlberg (1996). However, the third openly deals with the disquieting impact on morality of being involved in the imprisonment and death of follow human beings.

The methodology is a correlational study that does not create any new conditions, but observes how factors appear to affect participants. Nearly 250 guards three maximum-security prisons in three different states were studied. Some of the guards had served in the execution process, while others had not. Standard survey tools such as likert scales were used by the guards to rate responses to questions, such as “Murderers who receive the death penaly have forfeited the right to be considered full human beings” (p. 380). From the guards’ responses, Bandura and his colleagues were able to conclude that “Executioners made heaviest use of dehumanization, security and economic justifications and disavowal of personal responsibility” (p. 382). For those who participated in executions, moral disengagement increased with the number of executions with which a guard was involved.

The length of Bandura’s career is striking. At first glance, his experiments (ranging from imitation, to sex-role development, to capital punishment) have little to do with each other. Some have even talked about Bandura having a second and third professional life. With respect, I disagree. Bandura has consistently addressed issues at the intersection of modeling, behavior, and social rules. Bussey & Bandura’s (1984) study is a continuation of Bandura, Ross, & Ross’s (1961) examination on imitative child violence, just as Osofsky, Banduyra, & Zimbardo (2005)’s adult participatory violence naturally extends the study of childhood imitative violence. Bandura’s research style has expanded a bit more in this time, moving beyond the experimental studies of the laboratory to correlational studies of the outside world. This perhaps is the more profound shift, sacrifices the rigor of being able to manipulate variables at well for the external validity of conducting research that matters

References

Bandura, A., & Huston, A. C. (1961). Identification as a process of incidental learning. Journal of Abnormal and Social Psychology, 63, 311-318.

Bandura, A. (1965). Influence of models’ reinforcement contingencies on the acquisition of imitative responses. Journal of Personality and Social Psychology, 1, 589-595.

Bandura, A. (1969). Social-learning theory of identificatory processes. In D. A. Goslin (Ed.), Handbook of socialization theory and research (pp. 213-262). Chicago: Rand McNally.

Bandura, A. (1999). Moral disengagement. In I. W. Charny (Ed.), Encyclopedia of genocide (pp. 415-418). Santa Barbara, CA: ABC-Clio.

Bandura, A. (2001a). Social cognitive theory: An agentic perspective. Annual Review of Psychology, 52, 1-26. In html form from Annual Review Psychology (must be accessed from edu domain).

Bandura, A. (2001b). Social cognitive theory of mass communication. Media Psychology, 3, 265-298.

Bandura, A. (2002). Selective moral disengagement in the exercise of moral agency. Journal of Moral Education, 31, 101-119.

Bandura, A. (2004). Role of selective moral disengagement in terrorism and counterterrorism. In F. M. Mogahaddam & A. J. Marsella (Eds.), Understanding terrorism: Psychological roots, consequences and interventions (pp. 121-150). Washington, DC: American Psychological Association Press.

Bandura, A., & Locke, E. (2003). Negative self-efficacy and goal effects revisited. Journal of Applied Psychology, 88, 87-99.

Bandura, A., Ross, D., & Ross, S. A. (1961). Transmission of aggression through imitation of aggressive models. Journal of Abnormal and Social Psychology, 63, 575-582. Retrieved July 14, 2008, from http://psychclassics.yorku.ca/Bandura/bobo.htm.

Bussey, K. (1979). Same-sex imitation: Fact of fiction? Unpublished doctoral dissertation, University of Queensland, Brisbane, Australia.

Bussey, K., & Bandura, A. (1984). Influence of gender constancy and social power on sex-linked modeling. Journal of Personality and Social Psychology, 47, 1292-1302.

Bussey, K., & Bandura, A. (1992). Self-regulatory mechanisms governing gender development. Child Development, 63, 1236-1250.

Bussey, K., & Bandura, A. (1999). Social cognitive theory of gender development and differentiation, Psychological Review, 106, 676-713.

Bussey, K., & Bandura, A. (2004). Social cognitive theory of gender development and functioning. In A.H. Eagly, A. Beall, & R. Sternberg (Eds.). The psychology of gender (2nd ed., pp.92-119) New York: Guilford.

Kohlberg, L. (1966). A cognitive-developmental analysis of children’s sex-role concepts and attitudes. In E.E. Maccoby (Ed.), The development of sex differences (pp. 82-173). Stanford, CA: Stanford University Press.

Leahey, T.H. (2004). A history of psychology: Main currents in psychological thought (6 ed.). Upper Saddle River, New Jersey: Pearson Prentice Hall.

Maccoby, E.E. (1959). Role-taking in childhood and its consequences for social learning. Child Development, 30, 239-252.

McAlister, A. J., Bandura, A., & Owen, S. V. (2006). Mechanisms of moral disengagement in support of military force: The impact of September 11. Journal of Social and Clinical Psychology, 25(2), 141-165.

Osofsky, M. J., Bandura, A., & Zimbardo, P. G. (2005). The role of moral disengagement in the execution process. Law and Human Behavior, 29, 371-393.

OODA-PISRR, Part I: The Social Cognition Loop

The late Air Force Colonel John Boyd’s five stages of victory, his , are often shown like this:

medium_ooda_act_pisrr_small.jpg

But once one looks at it like a loop

ooda_pisrr_00

all sorts of things become apparent.


First, one might try to change the existing OODA loop:

To look “more like” the PISRR loop

ooda_pisrr_01

but the differences, such as the Decide->Observe loop-back, mean that PISRR is not the same as OODA..

More profitable is to follow Larry Dunbar’s realization

While I now understand the strategy of OODA (as well as any non-expert could), PISRR should be give equal time. OODA is going from Potential Energy (Observe) to Kinetic energy (ACT). PISRR is going from Kinetic energy (Penetrate) to Potential Energy (Reharmonize).

Harmony can be considered non-destructive waves of changing potential energy. To reharmonize would be to reunite these non-destructive waves of energy into a society.

There are many similarities, almost mirror images, to the OODA loop and the PISRR loop. Both rely explicitly on trust, this must have been where Col. North screwed up the PISRR loop. Both are powerful strategies in war. While OODA can be considered an organizational loop from Special Operations forces to a Leviathan force, PISRR can be considered an organizational loop going from Leviathan force to a System Administration force.

That is, OODA describes escalation and PISRR describes de-escalation

ooda_pisrr_02

(Compare also to normal and revolutionary change.)

This implies that one can replace the “external world” in the OODA loop with the PISRR loop, and vice verse, so:

ooda_pisrr_03

Yet here “Act” is redundent, because the first step of the PISRR loop — Penetrate — is itself an action.

ooda_pisrr_04

We may call it a day, if not for a red flag. A clue in John Boyd’s language tells us we are missing something profound

ooda_pisrr_05

If “Penetration” is a form of “Action,” then should Reorientation not be a style of Orientation?

The red flag alertts us to another similarity in PISRR and OODA — Decide and Subdue

ooda_pisrr_06

In a comment I made to Dr. Dan Nexon, I mentioned

The difference between 3GW and 4GW difference is that 4GW tries to force a qualitative change, while 3GW tries to force a quantitative reevaluations. As I mentioned in another post [1], 4GW focuses on Orientation while 3GW focuses on Decision.

For example, we can simplify the British public’s thought process as

“While the cost of war is not too high, fight bad guys”

Strategic bombing tries to change the value of the quantitative value “the cost of the war” past the fuzzy value “too high.” The bombings themselves increase the cost of the war, while propaganda decreased “too high” (by saying “a Berlin-centered England wouldn’t be so bad…” ).

4GW would have tried to change the identity of the British public itself. It would have tried to shift the British public, not just into neutral observers, but allies. It would have convinced the public in the 1940s, in a way that many Marxists were able to do by the 1970s, that Britannia herself was the evil empire.

In other words, Orientation and Subversion all focus by changing qualitative characteristics of a person. It alters whether or not a person would do something, all other things being equal. Subdue and Decide focus on quantitative change, whether or not a man can practically achieve his goal.

This implies that Subvert is part of Orient…

ooda_pisrr_07

which means we can simplify the model to:

ooda_pisrr_08

We now have a realized model of the “cloudy” OODA-PISRR model we started out with

ooda_pisrr_02

Specifically:

ooda_pisrr_09

This combined loop may be called a Social Cognition Loop, because it reflects the subject’s OODA loop and the object’s PISRR loop as part one one cycle. Like a sine wave.

Yet this Social Cognition Loop is wrong, and Boyd is incomplete. A wise fighter will try to break it anyway. He can’t, but he can destroy something else.


OODA-PISRR, a tdaxp series in four parts
Part I: The Social Cognition Loop
Part II: The PISRR Cognition Loop
Part III: Formless Fast Transients
Part IV: System Perturbations

Teaching Law Through Saying and Doing

Relative Normativity in International Law,” by Ulrich Fastenrath, EJIL: The European Journal of International Law, Vol 4 No 3, 1993, ppg 305-340, http://www.ejil.org/journal/Vol4/No3/art1.html.

It’s time for more boring class notes. This was read along with Why We Teach and Constructing Maps.

In a well-known article published ten years ago1 Prosper Weil spoke out against several developments in the theory and practice of international law which aim at a gradual differentiation of the normativity of international legal norms: (i) the emergence of soft law, culminating in a fierce debate on the legal effects of certain resolutions of the UN General Assembly; (ii) the distinction made by the ILC between international crimes and international delicts, based on the further distinction between obligations erga omnes and obligations which are owed only to individual States; as well as (iii) the recognition of ius cogens as confirmed in Articles 53 and 64 of both the 1969 and the 1986 Vienna Conventions on the Law of Treaties. Professor Weil regarded these developments as pathological; they are to cause concern to the lawyer in his role as a ‘system builder by vocation’. According to him, international law would no longer be capable of fulfilling its function – the ordering of international relations in a heterogeneous, pluralist world – were the existence of rights or obligations to be determined through the importation of material criteria into the law. That would be to give uncertain weight to such rights
and obligations and to abandon a neutral evaluation to be effected through the application of formal legal criteria.

Legal Positivism is a form of positivism. The latter is, in general philosophical terms, based on the idea that, logic and mathematics apart, only phenomena which can be recognized by the senses are amenable to scientific knowledge. Thus, science is restricted to observable events and regularities or to a purely structural methodology devoid of content. Applied to the field of law, this premise of positivism has the consequence that jurisprudence may only concern itself with (i) internal or (ii) external behaviour of human beings, (iii) with the material embodiment of law in legal texts, judgements, etc. [so nearly useless! decontextualized! “New Criticism” from literary theory! — tdaxp], or alternatively, (iv) that it must disregard the content of rules and view itself as a general theory of law, taking note only of fundamental concepts which are necessary for all legal thinking.

In contrast to the Vienna School, H.L.A. Hart regards the existence of a constitution as a luxury. International law which, in his opinion, is primitive requires only individual recognition of each norm as a legal norm [so International Law is just socialization that is called law? — tdaxp]. Gidon Gottlieb and Friedrich V. Kratochwil find evidence of such acceptance in the fact that international actors feel bound by such norms or have recourse to them without questioning them or giving reasons for their validity.

Such vagueness is a necessity in the case of multilingual international legal texts, which, as a consequence of the use of different national languages, may remain deeply rooted in national legal terminology. Where concepts have no natural, predetermined existence but rather arise in response to the requirements of normal life, different languages may develop divergent semantic fields, that is, impose different categorizations upon the world. This is common in the face of different living conditions and, in particular, as a result of different cultural perceptions. For it is language and its classification that enables individuals to create their own world along the lines of their cultural perception; the world we experience is no more than the reflection of what we have made of it for ourselves. The greater the degree of cultural diversity the less likely it is that concepts will have a common meaning. This is particularly true for legal language, since each national legal system can be regarded as the ‘property’ of the nation concerned. In Europe alone, many different legal cultures have developed their own divergent legal institutions, often without counterparts in the other systems [so no coherent international law? — tdaxp]. To comprehend the legal framework of even more distant cultures within the categories of our domestic legal systems is all the more impossible. Divergent semantic fields in different languages and the creation of different legal institutions within various legal systems not only lead to extreme difficulties of translation,26 they also demand openness in the use of language. It is only in such a way that, despite a plurality of authentic texts in various languages, treaties may retain a common meaning, as presumed in Article 33(3) of the Vienna Convention on the Law of Treaties.

As law affects society, (technical) language employed in legal propositions (Rechtssätze) must stand the test of daily social usage. In this context, individual acts of application may be seen as continuous extensional definitions of the terms embodied in the text of the treaty [teaching is not just a text — it is a continuous process — tdaxp]. It is in this sense that one of the Special Rapporteurs of the ILC on the law of treaties, Sir Humphrey Waldock, saw in subsequent practice ‘an authentic interpretation comparable to interpretative agreement’.30 Also, the commentary of the ILC on Article 27 of its final draft on this subject-matter states that subsequent practice ‘constitutes objective evidence of the understanding of the parties as to the meaning of the Treaty’.31 It is with good reason, therefore, that Article 31(3)(b) of the Vienna Convention identifies such practice as a legitimate tool for the interpretation of treaties. A similar function may be ascribed to decisions of international courts and to statements made by individual States, by organs of international organizations, as well as by scholars of international law. Thus, through the evaluation of the (il)legality of individual acts and through the provision of, at least, interpretational suggestions for the relevant legal propositions (Rechtssätze), the process of concept-building continues.

The importance of such informal instruments in the development of law intra legem has frequently been confirmed by judicial decisions and doctrine. For instance, the US Court of Appeal for the Second Circuit stated in Filartiga v. Pena Irala40 that ‘[These] UN declarations are significant because they specify with great precision the obligations of Member States under the Charter. Since their adoption, members can no longer contend that they do not know what human rights they promised in the Charter to promote.’ Judge Jiménez de Aréchaga took an analogous view in his separate opinion in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case:’… even if a new accepted trend does not yet qualify as a rule of customary law, it may still have a bearing on the decision of the Court, not as part of applicable law, but as an element in the existing rules or an indication of the direction in which such rules should be interpreted’.41 In legal literature, Daniel Thürer has declared soft law to be ‘an orientational aid to interpretation’ while Alfred Verdross and Bruno Simma claim that certain resolutions of the General Assembly lay down ‘the perimeters for future arguments as to the applicable law’ [the OODA loop and Soft Law! — tdaxp]

Meta-legal linguistic conventions (to which even legal positivism must have recourse if it is to ensure that legal propositions (Rechtssätze) have any meaning at all) may have different degrees of authority. They receive different levels of acceptance from different States, also at different points of time. In addition, they are always subject to adjustments, themselves of varying degrees of authority. Thus, legal positivism is unavoidably forced to accept a graduation of normativity at the level of content. Since such variations in the use of language will mostly be of minor significance they will, as a rule, only affect the periphery of a concept. In some cases, however, these differences can have an impact on the very core of a concept. The liberal versus the Marxist-Leninist concept of ‘freedom’ in the understanding of human rights constituted a classic example [fall of Soviet Union as “teaching experience” — Victory as a “lawful” form of instruction? — tdaxp]. In such instances, the delimitation of a concept, and with this the clarification of the scope of the legal proposition (Rechtssatz) concerned, will depend upon the degree of authority and acceptance ascribed to the linguistic conventions in question.

In contrast to international treaties, both international customary law and general principles of law as defined in Article 38(1)(c) of the Statute of the ICJ, lack an authentic wording. Instead, such rules are formulated by international and national judges, organs of States and international organizations, or in scholarly writings through induction on the basis of State practice, of enunciated legal opinions, or through comparison of domestic law. Legal positivism would only be able to maintain its (purely positivist) approach if it were possible to draw unambiguous legal propositions (Rechtssätze) from this factual substratum. However, the simple fact that lawyers differ in their formulation of rules of customary law and general principles proves this to be impossible.

A judgement of the German Constitutional Court52 may serve as an illustration. The question before the Court was whether attachment of an embassy bank account would be prohibited by customary international law or by a general principle of law in the sense of Article 38(1)(c) of the ICJ Statute. First, the Court attempted to verify a customary rule of very narrow substantive scope, namely regarding the treatment of embassy bank accounts specifically with a view to attachment. In so proceeding, neither sufficient precedents nor domestic rules on the subject were found. Consequently, this approach was relinquished. The Court then had recourse to the highly abstract principle ne impediatur legatio. Obviously it was easy to find sufficient practice in support of such an abstract rule. What this shows is that the more concrete a norm will be formulated, the fewer cases may be found to fall under it and the more difficult it will be to identify that norm as a rule of customary law. Conversely, if a higher degree of abstraction is applied, the range of actions encompassed by the rule will grow. However, it will be as difficult to establish the concrete circumstances under which such a highly abstract rule may be applied as it will be to prove the existence of a rule with a very narrow substantive scope.

The unwritten constitution of international law still does not clarify which formal sources of international law actually exist [making cognitive battles all the more important — but this would seem to imply IL is seperate from social cognition — tdaxp]. Although Article 38(1) of the Statute of the ICJ identifies treaty law, customary law and general principles as largely uncontested sources of international law, this does not make clear on the basis of which criteria these law-creating procedures, and possibly only these, are to be regarded as belonging to the international constitution. In the context of legal positivism, rules would be necessary to address this issue. As these are lacking in international law – with the exception of rules on decision-making by international organizations – reference must be made to other concepts in order to determine the formal sources of international law. One may refer, for instance, to factors like general acceptance, the will of States or general practice in order to establish what counts as a source. This, however, leads to the observation that in legal positivism the validity of a legal proposition (Rechtssatz) and thus of the imperative embodied in it, is always (i.e. not only in the case of customary rules and general principles)
dependent upon contestable claims of varying degrees of authority. Thus, even at the level of the validity of norms legal positivism is unable to succeed in its attempt to exclude relative normativity from international law.

A problem inherent in the ‘constitution’ of international law is that of the hierarchical structure of the legal order. Both Vienna Conventions on the Law of Treaties recognize ius cogens. According to their provisions, treaties violating ius cogens are null and void. However, in contrast to national law, superordinated norms cannot be identified through particular legislative procedures. Instead, Article 53 of the Vienna Conventions gives priority to a norm which is ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character’. [high-intensity, random cycling conditioning? highly-effective in most animals, and makes it hard to unlearn — tdaxp] Such a formulation may leave a lot to be desired. International law does not, however, thereby surrender itself to an incalculable and uncontrollable subjective process. The criterion of general acceptance bars any attempt to make recourse to an unverifiable form of natural law. On the contrary, to the largest possible extent, a positivist, and thus verifiable, definition of ius cogens was chosen. Here, once again, soft law fulfils a useful function in that it provides generally accepted manifestations of widespread and established views as to what is to be regarded as legal and just.

The supporters of legal positivism will hardly find this convincing. They must, however, acknowledge that the international community used the Vienna Conventions to state explicitly that positivist conceptions were not sufficient and that material conceptions of legal validity were required [so power — that is teaching ability — matters — tdaxp]. Legal positivism is thus faced with the choice to either surrender its own premises by ignoring treaty provisions, or to accept these provisions and disclaim the omnipotence of positivist premises.

Voluntarism follows in the tradition of Hobbes: ‘auctoritas, non veritas facit legem’. Law is equated with the will of the law-maker, who decides upon the content and legal character of a norm. Along these lines the PCIJ stated in its judgement in the Lotus case: ‘International law proceeds from their [i.e. the States’] own free will’. [but if states are conditioned, how is this ‘free will’? — tdaxp]

Hence, modern day supporters of natural law also presuppose a positive law which is no longer understood as a reflection of justice. Rather, it is now conceived as an order ‘whose meaning is essentially committed to the value of justice’. This conceptual linkage justifies the power of the law to impose duties and, also, creates a pattern of meaning which, through the identification of the (ultimate) object and purpose of all norms, influences positive law (cf. Art. 31(1) of the Vienna Convention on the Law of Treaties). The ICJ made explicit reference to this role in the Continental Shelf (Tunisia/Libya) case:

when applying positive international law, the court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of justice.

[so Law as recognized as tool by courts, not as a good in itself. Both ramifications for social cognitive comparison and “lawfulness” generally. So IL is not a progressive Ulema — unless one say Sharia is not a goal in itself, but only as a way of serving God… — tdaxp]

The point of departure for the following discussion is the understanding that a verifiable, ‘true’, concept of law does not exist. ‘The term “law” has no inherent claim, arising out of some conceptual myth, to “mean” something well-defined and nothing else. What law should mean is a question of definition and definitions are only crutches for cognition.’ Thus, all legal theories as well as the norms derived from them are nothing but claims. Legal science is not to be understood as a method which seeks to reconcile law with truth. It is instead a method of operation, whose effectiveness is to be judged by its results [Just like teaching. Also somewhat Pauline. — tdaxp]. As law is given the general task of influencing human behaviour, legal theories must be judged according to how effectively they fulfil this task. In this context, limited effectiveness of a legal theory implies limited normativity

If one acknowledges the possibility of embracing the various legal theories in one overall system one has to suppose the following: (i) law is not a pre-existing system, only in need to be identified; (ii) law is not necessarily a homogeneous system, free from contradictions [the first time I read this I thought it was interesting, but now it seems to be just a refutation of “purfect law,” which clearly does not exist in practice — tdaxp]; (iii) the various legal theories do not exclude each other. Although the first two premises are not simply proven by the foundationlessness of the divergent legal theories, the openness of language and with this, the openness of the concept of law, allows us to accept them. In respect of the third premise I must confine myself to the observation that none of the theories of law which I have presented is self-sufficient and that the various theories are interconnected. For example, legal positivism is obliged to descend from its pure semantic level. In order to clarify the meaning of a norm, legal positivism, too, has to follow Articles 31 and 32 of the Vienna Convention on the Law of Treaties and include a pragmatic dimension by referring to the will of the parties to a treaty, to subsequent practice, to the object and purpose of a norm and to the circumstances of its creation. In so doing, legal positivism relies on determinants drawn from other legal theories. On the other hand, approaches that are based upon the material content of law cannot dispense with linguistic elements. The law-maker can only express her/his will to the addressees of law through language [disagree! the law-maker enforces — teaches through behaviorism — tdaxp]; divergent practice is ‘made the same’ by linguistic categories, and our legal perceptions or reflections on justice must be expressed through these conceptual categories, to be identified by particular verbal expressions. Language is thus not only necessary for articulation, but is much rather a prerequisite for any orderly intellectual examination.

Consequently, a normative contention will be best capable to assert itself if it is generated through a generally accepted source of law, and if it closely reflects the will and the practice of the States, as well as common perceptions of justice [see socialization — “law” can be any socialization action? — tdaxp]. If these conditions are fulfilled, the existence of theoretical divergencies does not necessarily weaken individual normative contentions based upon such concepts. Provided that these contentions display conformity as to substance, they may in effect strengthen each other.7 Where, on the other hand, contentions are contradictory they might paralyse each other. But even this result need not lead to the legal aporia so impressively described by M. Koskenniemi.128 Instead, it will give rise to a struggle of rivalling legal contentions for dominance. Contrary to the epistemological approach of M. Koskenniemi, the authority of such contentions, and thus their strength and their capacity to assert themselves, need not be equal. After all, nobody is required to side with the powerful battalions. The ‘weaker’ contention is also a legal one and may, over time, even win out over the other. The question of which contention to support is a political one and the prevalence of a legal contention thus the result of a political process. As a result of calculations of legal policy, those involved in the process of the creation and application of international law will frequently be prepared to accommodate themselves with other normative contentions, even if these cannot be founded upon finite justifications.