The Promise of International Law
Virginia Law Review 92 (2006): 533-564
33 Pages Posted: 16 Nov 2012
Date Written: 2006
In their recent book, The Limits of International Law, Professors Goldsmith and Posner throw down the gauntlet to scholars of international law. They advance a deeply pessimistic account of international law and its role in affecting state behavior -- alleging that customary international fails to act as “an exogenous influence on states’ behavior,” and expressing skepticism that multinational collective action problems can be solved by treaty. This review represents a response to the book’s claims. It is demonstrated that there is no theoretical reason to conclude that international law is ineffective, whether it addresses bilateral or multilateral problems and whether it takes the form of written agreements or customary law. Adopting the same rational choice framework used by Goldsmith and Posner, it is shown that rational states have a reason to value a reputation for compliance with international law and, therefore, a reason to comply with their international legal obligations. The mechanism through which international law affects state behavior is obviously of central importance to those seeking to understand the international legal system. This review both explains the assumptions required to generate the results provided in The Limits of International Law and illustrates how more reasonable assumptions support a theory of international law in which state behavior is constrained by their international legal commitments.
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By Claire Kelly