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11 Adaptive States: Making and Breaking International Law K arl Polanyi asserted in The Great Transformation that “[n]o mere declaration of rights can suffice: institutions are required to make the rights effective .”1 Polanyi was highlighting the necessity of public institutions, their role in translating rights into practice. Yet Polanyi also saw institutions as social products, “embodiments of human meaning and purpose” in a given historical moment.2 In this view, institutions are the engines of change, just as they are shaped and constrained by their particular context. While Polanyi was commenting most directly on the nature of institutions, he was also implying that the origin of any right lies in a parallel “wrong.” Rights, that is, enter the political imagination precisely because people’s ideals of what is owed them (or someone else) fail to live up to the reality of their circumstances. Thus, rights declarations can never suffice, as Polanyi notes, since the wrongs animating them are themselves the product of historically and socially embedded institutions—one set of institutionalized practices must be transformed into another. The great paradox for human rights is that institutional transformation, even when it occurs, will itself not suffice. This is because international and national human rights institutions have social contradictions embedded into them, evolving in the shadow of a state that both defines and violates international human rights norms. This presents us with two overlapping ironies. On the one hand, activists most prepared to work for institutional change must believe in the transformative power of institutions, in their capacity to turn ideals into practice and improve human lives, even while the institutions may camouflage state motives and produce perverse consequences. On the other hand, even the most cynical of state efforts to manipulate institutions can feed back and reinforce social demands, occasionally taking unexpected turns and engendering longer lasting reform. Neither state nor society always gets what it wants out of human rights institutions, but occasionally they do. This is the story I have tried to tell in tracking the global rise of NHRIs, an account of how the modern state creates self-restraining mechanisms as a way of retaining, not abdicating, its authority. During periods of norm ambiguity, when the state’s normative commitments are in question, state leaders have an incentive to adopt socially appropriate ideas. After the fact, normative discourses and institutions can appear so certain, even morally arrogant, that we forget the ambiguities leading to them, including moments of transition, new obligations, or contested practices that open space for norm-diffusing agents to promote their ideas. Beyond human rights, ambiguity may also underlie broader patterns of global diffusion in world affairs, helping to explain why new normative orders so often get locked in after wars or why global commitments can spark localizing trends. Strategic emulation is a powerful driving force, rooted in the dualities of the modern state. The picture that emerges of the state is that it is adaptive more than selfrestraining . State leaders, propelled by strategic emulation, follow external scripts, latch on to myths, and perform membership rites. They do these things because their social peers do them, as they look to lock in commitments or localize authority or appease critics. This is the background against which over a hundred of the world’s states have created in the past half century self-restraining, accountability mechanisms taking the form of “national human rights institutions.” Despite enormous diversity and variance, the institution has diffused globally and NHRIs have become an internationally recognized actor in their own right. Though cast as a modern democratic institution , enabling horizontal accountability, the unstated dynamic is that state leaders today still resemble political authorities of the past, in their willingness to institutionalize self-restraint as a means of retaining more than relinquishing authority. Today’s NHRIs have something in common with Jahangir ’s seventeenth-century Mughal “chain of justice”: symbols of accountability, warnings to dissenting authorities, means of connecting with a populace and preventing rebellion—now embedded in a global context of similarly interlinked adaptive states 351 institutions, representing the state’s dual role as maker and breaker of international law. Ambiguity, Path Dependencies, and Dynamic Diffusion The role of ambiguity in international politics has not been sufficiently explored .3 Yet the theory and evidence here point to the ways ambiguity shapes strategic emulation, itself a complex mechanism of diffusion. Unlike certainty, which centers on probability, ambiguity revolves centrally around questions of interpretation and multiple meaning. During such circumstances, I have...

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