Remarks by an Idealist on the Realism of 'the Limits of International Law'

Abstract

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it improperly conflates the new rationalist methodologies of international law, such as rational choice theory, with substantive political outcomes in international law - particularly attachment to the sovereignty of states, as against the preferred political outcome of traditional international law scholars, liberal internationalism.

The paper argues, however, that the rationalist methodology of 'The Limits of International Law', if successful, essentially undercuts the substantive political claims of liberal internationalism, by denying to it the claim that the international legal order exercises an exogenous pull upon the behavior of states. If the rationalist methodology of 'The Limits of International Law' is successful, then the substantive political position of democratic sovereignty (rather than liberal internationalism) is effectively the last man standing as the bearer of idealist values in international law - there will be no point to considering liberal internationalism because it would exert no exogenous pull upon state behavior beyond what states would otherwise exhibit, whether from state interest or from a state's ideals and values. The stakes for the rationalist methodology are therefore considerable because the rational choice methodology of "The Limits of International Law" bears directly upon what substantive political positions are available as vehicles for values and ideals in the international order.

The paper also notes that the whole debate as to whether international law exerts an exogenous tug upon the behavior of states has a curious resemblance to debates in the philosophy of mind and intention - to the writings of analytic philosophers Gilbert Ryle and Elizabeth Anscombe - over the 'ghost in the machine' of intention and behaviorist skepticism about the ghost in the machine. International law's new rationalist methods thus somewhat resemble behaviorism's attempt the strip the ghost out of the machine, stripping the ghost of the exogenous pull and tug of international out of the machine by showing that it is, examined closely enough, simply a manifestation of state interest.

Keywords: international law, rational choice, customary international law, realism, idealism, liberal internationalism, democratic sovereignty, sovereignty, multilateralism, democracy, public international law

JEL Classification: K33