Rational choice theory and laws of war

In setting out versions of realism in the just war debate, a question is arising in my mind as to whether the academic literature is yielding a separate version of realism in both jus ad bellum and jus in bello based around rational choice theory. I am thinking in particular of Eric Posner's writings on this subject, such as his 2002 jus in bello paper, A Theory of the Laws of War, at SSRN, here, or his 2004 jus ad bellum paper, with Alan O. Sykes, Optimal War and Jus ad Bellum, at SSRN, here.

This is a bit of a pedantic exercise, I suppose; the rational choice modeling in this papers is just a version of realism, instrumentalism with a specialized vocabulary. Intellectual writing about war has always had this kind of theorizing - it's hard to see how very different it is from Thucidydes or Hobbes or Machiavelli or Morgenthau. To call rational choice theory in just war argumentation a separate form of realist argument might really be thought merely to be elevating a technical vocabulary over results. And, anyway, there is a certain sense that the standard template of law-and-economics tools - to a man with a can opener, everthing looks like a can - has simply been shifted to this new area, with something like cookie cutter results. Even the sophisticated technical game theory has already been done ad infinitum by game theorists, philosophers, mathematicians, and so on in the modeling games over nuclear war during the Cold War - I'm not sure that rational choice will add that much to the modeling already worked out then.

If there is a new element to it, it seems to me to lie particularly in the jus in bello area - an area neglected in any case by realist instrumentalists - and even more particularly in the concept of reciprocity in the laws of the conduct of war. Rational choice theory naturally emphasizes reciprocity as a condition of stable laws of war - it flows out of its instrumentalism most obviously, but also out of its underlying contractualist way of thinking, and in that there is both an instrumentalist impulse and a genuinely normative one.

Reciprocity has fallen into disfavor among those who regard themselves as the moralist-guardians of the laws of war - the ICRC, the human rights NGOs, de-militarized Western European governments - on the grounds that the laws of war are to be regarded as individual human rights, existent and enforceable as inalienable individual rights, without regard to whether the organized parties to a conflict, states or non-state actors such as Al Qaeda, follow them. It doesn't matter that the other side violates them, you must follow them because they are rights of the individual fighters, their human rights in war. This seems to me a recipe for instability in the laws of war, and their eventual decline into irrelevance - and this is a conclusion which rational choice theory would seem to support.

But of course rational choice theory understands the importance of reciprocity not as a moral theory, but rather as a theory predicting the decline and eventual irrelevance of non-reciprocal standards. The question is whether one should make out the argument for the substantive content of jus in bello, at least in broad outline, on grounds of reciprocity. I increasingly believe it should be made on grounds not just of predictive rationality, for what will happen, but that it is a necessary element of the moral argument - moral realism that says, stable and agreed upon laws of war are morally important, and hence reciprocity is essential because without it, they will fall into disuetude. NYU law professor Noah Feldman's essay against the Bush administration on torture, interrogation, and the laws of war, in the New Republic this week, here (reg. req.), seems to me to fall exactly into the moral trap that reciprocity cannot matter - Feldman walks into it quite knowingly and quite deliberately, as a kind of moral argument, but it does not seem to me that he solves in any meaningful way the problem of reciprocity and the laws of jus in bello. I'll blog more on that article later - it is a profound article, despite my disagreements with it, and requires more space.

So, in a proper survey of varieties of argument over the ethics of war, does rational choice theory need its own separate niche as a version of realism? Given the direction of the academic literature, likely yes.