21 Pages Posted: 16 Feb 2006
This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas.
In the essay I suggest that the critical core of the authors' argument is a form of rule skepticism of a kind with that explored most prominently by Ludwig Wittgenstein and Saul Kripke. Rather than rehearse that literature, the essay uses this insight as a tool to set limits on the critical agenda of the book. In particular, I argue that the claim that "no course of [state] action could be determined by a rule, because every course of [state] action can be made out to accord with the rule" leaves the authors' critical thesis to turn on contested and contestable historical claims. In the essay I do not argue that this is reason to reject this work; rather, I indicate several directions for empirical inquiry and conclude that this book sets the stage for fruitful future debates.
Separate from these descriptive concerns, I also suggest that the authors' skepticism may be muted entirely by a more careful exploration of what constitutes rule-following in the field of international law. Specifically, I suggest that, viewed as an operating system, organized around procedures that provide forums for normative debate, set the stage for public reason-giving, and establish terms for the use of carrots and sticks, international law may not aspire to be a determining force for state action, particularly in the motivational mode implied in the authors' discussion. Rather, taking this proceduralist view, it may be enough for international law advocates that the law exists, that states do engage in law talk, and that states include in their behavioral calculus the potential consequences of their actions in light of international law as an operating system. Again, I conclude that these potential objections provide no ground to condemn this interesting work but highlight its indisputable value as a refreshing addition to the international law canon.
I end with the following advice:
"While, as the authors note, this short book may raise more questions than it answers, it lays the foundation for an approach to research and practice that is sure to become a force in many fields. Readers are advised not to be left behind."
Keywords: International Law, Game Theory, Jack Goldsmith, Eric Posner
JEL Classification: C70, C71, C72, N40
Suggested Citation: Suggested Citation
Gray, David C., Rule-Skepticism, 'Strategery,' and the Limits of International Law. Virginia Journal of International Law, Vol. 46, 2006; Duke Law School Legal Studies Paper No. 100. Available at SSRN: https://ssrn.com/abstract=884978