The Limits of International Law.

Vol. 15 No.4 (April 2005), pp.336-339

THE LIMITS OF INTERNATIONAL LAW, by Jack L. Goldsmith and Eric A. Posner. New York: Oxford University Press, 2005. 272pp. Cloth. $29.95 / £18.50. ISBN: 0-19-516839-9.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College. Email: ssilver@catawba.edu.

A rational choice theoretical analysis of international law is presented here as one of the more unique treatments of the age old question of why states obey international law. The book is divided into three parts: the role of custom and international law; treaties as a form of cooperative agreement; and rhetoric and morality in international law. In this slim tome, Jack L. Goldsmith and Eric A. Posner boldly and ambitiously set out to answer a host of traditional questions posed by critics and advocates of international law. More realistically than some, a set of conditions is posed to explain the operation of international law through its connection to international politics, an issue that has prominently emerged recently in print (Reus-Smit 2004; Scott 2004; Boyle 1985; Abbott 1989). At the outset, those unfamiliar with “rat choice,” are given the necessary assumptions to evaluate not only the theory but its application to international law—to wit: 1) the state is the central political actor in the international political system; 2) the primary concern of the state is the outcome of its policies; and perhaps most importantly 3) the state acts in a rational manner to maximize possible gains that can be achieved by implementing any political option.

As the central theme, the single most distinctive character of the book is the employment of rational choice theory as it relates to international law. To be sure, models of bounded rationality emerge from the public administration scholarship of Herbert Simon and follow on the heels of game theory which has been applied to law (Baird, Gertner, and Picker 1994), but now is further embellished to cover the international scene.

Following the outline of a political theory, Goldsmith and Posner, two highly respected law school professors, follow it up with a similar schematic view of international law by introducing the theory with a caveat that is not fully examined—i.e., assuming that two states have “perfect information” about each other’s capabilities and intent, which of course can not be guaranteed or reasonably expected to exist, states conduct their global behavior in their own best interest in accordance with international rules. However, this condition does complicate the difference between logical intent and a rational approach to state behavior, since rational here is outside of the cultural context in which each state operates.

Goldsmith and Posner take as their theoretical orientation the work of Thomas Schelling (1960) with almost no attribution to the far more relevant work of Bruce Bueno de Mesquita and David Lalman (1992). The interest of the authors is primarily in international [*337] law’s ambit but with a noteworthy emphasis on international relations. Custom, as one of the mainstays and sources of international law, is clearly recognized as one of the major factors for state reliance, but the reasons for state compliance may remain deficient to some readers in the work under review. Game theory structures the authors’ analysis, framing the understanding of coincidence of interest, application of coercion, use of cooperation, and coordination of interest-oriented behavior. They take a behavioral approach to explain why states seek to maximize their interest at any given time. Where regularity exists, it is not because of the acceptance of custom but the placement of interest against a state’s capability as opposed to that of competitor states. Case studies are examined to show that states operate, not by adhering to some abstract legal nicety by customary practice, but to maximize expected gain from congruent interests, an argument that will shake norm-oriented legal theorists.

A core discussion emerges with the focus on lex scripta of international law—i.e., treaties. Why codify inter-state relations? Is it the binding factor that offers the illusion of a guarantee? Under the traditional international legal understanding, treaty implementation emerges from what some see as the normative character of law, without which harm can not be characterized as such.

Treaties are, of course, created in two forms: multilateral and bilateral. With regard to the former, Goldsmith and Posner argue that among any collection of states, common agreement is generated first among pairs, which in turn tends to attract others. A third party is always necessary to insure that one party does not defect from an agreement, by insuring compliance or by coordinating the redefinition of mutual interest that leads to the establishment of a new dyadic bond.

States enter into treaty relationships, it is argued, because of the precision imbedded in the negotiation process as well as the rules that are set for the interpretation of the document(s). Compliance with a treaty’s content is based upon the belief that interpretation is based on some benefit that will accrue because other signatories will comply in order to realize perceived a benefit.

Human rights, the next topic tackled, the ultimate normative goal, is often thought of as a post-World War II phenomenon. The authors, however, point to the nineteenth century prohibition of the slave trade as a source development that contradicts that understanding. Splitting hairs, which is of course the trade plied by practicing attorneys, is the institutionalization of human rights protections. Following the theoretical demands of the book’s thesis, there needs to be a compelling state interest in order for multiple states to ratify multilateral treaties. States have an interest in promoting the welfare of their own citizens to provide for domestic tranquility, while interest in people in other states is largely related to economic or security concerns.

When Goldsmith and Posner deal with international trade, they approach the heart of the democratic peace argument, since trade provides states with incentives to engage in peaceful economic interchange for [*338] mutual benefit. Beyond the standard background offering, they discuss the emergence of the GATT system in the creation of a new international economic order in the post-World War II era. An excellent analysis is imbedded here with attention to adjudication of conflicts among signatories, a controversial aspect of the GATT system. Goldsmith and Posner find that states violate stipulations of this multilateral agreement when sanctions are of less value than the benefits that accrue from a violation. The GATT and its dispute resolution procedure have since been replaced by the WTO and its Dispute Settlement Understanding. But the authors conclude that there are grave problems in establishing an empirical method to determine whether this actually represents an improvement. But here also is an open invitation for additional legal and political research.

Part three is devoted to the soft side of law and its enforcement, this time focusing on the relationship to rhetoric and morality. The previous sections present empirical analysis of state compliance with international legal norms and obligations. In this last section, the authors devote their efforts to the normative implications of rational choice, the relationship to the moral character of compliance, and question the utility of an altruistic approach to international legal compliance.

Goldsmith and Posner employ an empirically based template through which the observations are viewed: compliance is based on coincidence, cooperation, or coercion. At the end of their work, they focus on international politics with a glimpse into their theoretical origins in the Peloponnesian War and Thucydides, considered the first realist political theorist. On norm creation, the darlings are E.H. Carr and Reinhold Niebuhr. Their conclusions are clearly understood by political scientists who focus on linkages in foreign policy formulation: rhetoric disguises the raw power behind policy. A startling statement is made that states have no moral obligations to follow international law, but instead engage in interest-seeking behavior, which in the international political context impinges on the legal, when two or more states formalize their desires by negotiating a treaty. What moral obligation exists is based upon consent among states or a state seeking to fulfill its obligations to its citizens for material well-being.

Although Goldsmith and Posner make no claim to “have . . . written a comprehensive treatise” on why states accept – or reject – international law, they are to be commended for their effort to “help” place international legal scholarship “on a more solid foundation” (p.226). The creativity displayed here should now whet the appetite of other legal scholars to approach the international law and politics relationship from the perspective of prospect theory, or pursuing policy on the fear of losing an objective.

REFERENCES:

Abbott, Kenneth W. 1989. “Modern International Relations Theory: A Prospective for International Lawyers.” 14 YALE JOURNAL OF INTERNATIONAL LAW 335-411.

Baird, Douglas G., Robert H. Gertner, and Randal C. Picker. GAME THEORY AND THE LAW. Cambridge, MA: Harvard University Press, 1994. [*339]

Boyle, Francis A. 1985. WORLD POLITICS AND INTERNATIONAL LAW. Durham, NC: Duke University Press.

Bueno de Mesquita, Bruce and David Lalman. 1992. WAR AND REASON: DOMESTIC AND INTERNATIONAL IMPERATIVES. New Haven, CT: Yale University Press.

Reus-Smit, Christian (ed). 2004. THE POLITICS OF INTERNATIONAL LAW. NY: Cambridge University Press.

Schelling, Thomas. 1960. The Strategy of Conflict. Cambridge, MA: Harvard University Press.

Scott, Shirley V. 2004. INTERNATIONAL LAW IN WORLD POLITICS. Boulder, CO: Lynne Rienner Publishers.