Anderson on the Limits of International Law

Ken Anderson has an interesting article responding to Jack Goldsmith and Eric Posner’s book, The Limits of International Law. Anderson largely resonates with Goldsmith and Posner, but argues for the incorporation of values into the interest-based analysis. “In order for the Goldsmith and Posner theory to have content therefore, it requires some limit on the meaning of state interest and, in particular, the range of values that can be incorporated into it. This is the second crucial move of The Limits of International Law. The authors introduce the limit required to give the theory content in the form of an empirical assertion about the limits of other-regarding behavior that state interest is willing to accommodate…. It is a claim that other-regarding international behavior has limits–variable, to be sure, but a fact of international life whether one attributes the limit to individuals within a state or to the state itself.”

The article is available for download here. You can also read Anderson’s discussion of the piece here. This is the 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.

As an aside, I should note that Anderson also has an interesting post yesterday about his interest in mapping international law methodologies such as Goldsmith and Posner’s compared to others committed to liberal internationalism, and how blogs and wiki technology could facilitate a spatial mapping project. “[I]f you think you have a decent model to try out, then instead of simply arguing as ‘the’ author, this is where so and so, or so and so, and so and so, fits within the model, well, perhaps one should put it up as a wiki, or a supervised wiki, or some form of Web software that allows international legal scholars to say where they think they fit and why or why not. In some sense it is like taking an online survey, asking people to self-identify.”