Rational Custom

69 Pages Posted: 3 Nov 2002

See all articles by Edward T. Swaine

Edward T. Swaine

George Washington University Law School


This article agrees with recent papers that rational choice analysis may be a useful heuristic for customary international law, which is plagued by an incoherent approach to state interests. The theory's initial application, however, has been flawed and unduly truncated, and I provide additional illustrations from game theory and of customary rules to illustrate the point. Rational choice analysis not only explains why certain customary international law may legitimately be regarded as obligatory, thus redeeming an important legal institution, but also indicates important directions for reform.

Keywords: customary international law, public international law, rational choice

JEL Classification: D78, K33

Suggested Citation

Swaine, Edward, Rational Custom. Duke Law Journal, Vol. 52, p. 559, 2002, U of Penn Law School, Public Law Research Paper No. 13, U of Chicago Law & Economics, Olin Working Paper No. 167, Available at SSRN: https://ssrn.com/abstract=342900

Edward Swaine (Contact Author)

George Washington University Law School ( email )

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202-994-0608 (Phone)

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