40 Pages Posted: 27 Feb 2006 Last revised: 11 May 2008
In their book, The Limits of International Law, Professors Jack Goldsmith and Eric Posner use rational choice theory in an effort to understand how international law works in practice. This theory, they argue, invariably leads to the conclusions that most of customary law is the product of coincidence, that much of multilateral treaty law will fail, and that reliance on legal rules is frequently counterproductive. Provocative though these claims may be, the book fails to offer a robust explanation for the growth and variety of international legal commitments at play in today's world. The introduction of rational choice theory is itself largely unremarkable; the methodology has already found its way into international law scholarship over the past decade. More troubling, the conclusions that the book reaches do not follow from the rationalist theory that it presents; rather, we argue, the conclusions emerge from deeply held normative concerns about the role of international law in the U.S. constitutional system - in a word, from revisionism. In this review, we identify the revisionist commitments that color Professors Goldsmith and Posner's analysis of international law and propose a series of questions that rationalist legal scholars should answer as they move to develop deeper and more sophisticated rationalist theories of international law.
Keywords: international law, revisionism, rational choice theory, Eric Posner, Jack Goldsmith
JEL Classification: K33
Suggested Citation: Suggested Citation
Hathaway, Oona A. and Lavinbuk, Ariel N., Rationalism and Revisionism in International Law. Harvard Law Review, Vol. 119, No. 5, pp. 1404-43, 2006 ; Yale Law School, Public Law Working Paper No. 113; Yale Law & Economics Research Paper No. 339. Available at SSRN: https://ssrn.com/abstract=886087
By Kevin Davis