Refining the Limits of International Law
34 Pages Posted: 13 Jan 2006
Jack Goldsmith and Eric Posner's "The Limits of International Law" is not an uplifting read for most international lawyers, who are trained to think international law makes an important difference and generally believe more international law is better. The authors' overarching message is that international law is an endogenous outgrowth of individual state interests, and almost never a constraint on those interests. International law can, under special conditions, promote limited cooperation. But its ability to do so is very restricted. Goldsmith and Posner come to these conclusions via an analysis grounded in rational choice theory. In international relations this approach is mainstream. Despite their greater emphasis on the limitations of international institutions, Goldsmith and Posner's analysis is largely consistent with a very large body of existing work in international relations, and is even more derivative of it than they, or their readers, may realize. Limits nonetheless advances some important and trenchant criticisms of prevailing scholarship. And its positive analytic approach to state behavior reflects the burgeoning attention to theories and approaches drawn from political science and economics. Despite these virtues the book is unjustifiably skeptical about international law. Focusing particularly on its chapters on the dynamics of international cooperation, I argue in this review that Limits' relentless rationalism, while clarifying, fails to explain much of the texture of international cooperation - in large part because it fails to take proper account of the last twenty years of research in international relations, much of which highlights complex but important feedbacks between international institutions and domestic politics, preferences, and institutions.
Part I contextualizes the book's arguments within political science scholarship. Part II then shows that even within the rationalist tradition in political science that the authors draw on there is far less skepticism about the stability of cooperation than we see in Limits. That relative enthusiasm, moreover, is not at all grounded in flights of normative fancy or shoddy analysis, but rather in advances in the literature on institutional design in political science. Part III argues more generally that our understanding of the role of law in world politics can be enriched by accounting for a major strand of theory that they largely ignore: liberal international relations theory. Domestic politics seeps into Goldsmith and Posner's analysis here and there, but a more systematic incorporation would improve their arguments substantially. I illustrate the value of such an approach with a brief discussion of a vexing topic examined in Limits: the choice between binding and non-binding international agreements.
Keywords: international law, international cooperation, limitations on international institutions
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