A Negative Proof of International Law

Abstract:     
Jack Goldsmith and Eric Posner's "The Limits of International Law" shrugs in the face of undeniable advances in the rule of international law. Their primary strategy is to source those advances to something other than international law itself, or, more specifically, to something other than conduct undertaken out of a state's sense of legal obligation. This review essay, a contribution to a symposium issue on the book, first argues that international law is not demoted insofar as it reflects the rational interests of states. Other forms of law are also more or less grounded in the rational action of their target actors, and most of what Goldsmith and Posner say about international law can be said of ordinary domestic law. As corporate actors, states by and large comply with international law where it is in their interest to do so; the same can be said of corporations vis a vis domestic law and indeed in many cases of individuals as they calculate their own conduct. The essay then highlights the book's bracketing of actors other than states. By omitting any serious consideration of non-state actors from their analysis, Goldsmith and Posner are left with a partial understanding, at best, of the new international law dynamic. This bracketing is understandable from the authors' game-theory premises, as it would be difficult to model the interaction of polymorphic actors that results. But NGO's and corporations are now independently consequential actors in the dynamic of international law, as an empirical matter, and so international law models must move to take account of them. Insofar as Goldsmith and Posner brush them aside, their analysis is at least incomplete.

Number of Pages in PDF File: 18

Accepted Paper Series