Sunday, April 30, 2006

My review of Jack Goldsmith and Eric Posner's The Limits of International Law - now out!


I was fortunate to be invited to a quite wonderful small symposium at the University of Georgia Law School, hosted by Peter Spiro and Dan Bodansky and the staff of the international law review there, back in October 2005. The topic was the recent book by Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford 2005). The group ranged widely in terms of method and approach to international law - it included Peggy McGuinness, Kal Raustiala, Ariel Lavinbuk, Dan Golove, Andrew Guzman, and several other equally distinguished people and, of course, Jack and Eric. The symposium papers have been turned into a special issue of the UGA international journal - various of the papers have been posted to SSRN already, and I'm pleased to say I've just posted mine. (Update - and here is the reply essay to all the participants by Jack and Eric - it is a very, very interesting discussion of changes in international scholarship and method.)

My little discussion is titled "Remarks by an Idealist on the Realism of the Limits of International Law," 34 Georgia Journal of International and Comparative Law 253-284 (2006), and it can be found at SSRN here. It is a peculiar little essay - downright weird - be warned. Here is the abstract posted at SSRN:

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.