Jack Goldsmith and Eric Posner Respond

by Roger Alford

Jack Goldsmith and Eric Posner have posted an article responding to the recent criticism regarding their book The Limits of International Law. It is available for download here. Here is the abstract:

This essay replies to criticisms advanced at a conference on our book, The Limits of International Law. We criticize the critics for mostly complaining about our methodology, taking us to task for arguments that we did not make, or accusing of us of having a secret political agenda, rather than concentrating on our distinctive empirical claims. We also argue that our critics have more in common with us, and less in common with traditional international law scholars, than they are willing to admit. This observation leads us to claim that a new kind of international law scholarship is emerging, one that relies more heavily on social scientific attitudes and methodologies than the international law scholarship that it is gradually displacing. This trend fills us with optimism about the field, but at the same time we predict, with some misgiving, that much future scholarship will be preoccupied with reconciling the traditional liberal internationalism of the international law academy and the new imperative to use rigorous social scientific methods.

Goldsmith and Posner argue that we are seeing the emergence of new international law scholars, who (1) distinguish between positive and normative claims, (2) are interested in empirical scholarship; (3) are skeptical toward received wisdom and easy answers, (4) are less doctrinal, and (5) are influenced by social scientific theory, especially rational choice theory. They conclude with this interesting comment on the trends in international law scholarship:

Younger scholars with liberal internationalist leanings do not want to be identified with the older tradition of international law scholarship, of which the legal academy is appropriately contemptuous, and they are committed to methodological rigor. But they also do not want to abandon their liberal internationalist ideals, and a great deal of hostility toward our book is, we suspect, a reflection of their anxiety that methodological rigor and liberal internationalism are mutually exclusive. We predict, with some misgivings, that much of the NIL scholarship over the next decade will reflect this tension. It will work hard to demonstrate, in a methodologically rigorous fashion, that international law can foster robust multinational cooperation and that the United States and other countries should create more international law and organizations. Whether it will succeed remains to be seen.


One Response

  1. As I have stated before, one fundamental and I believe fatal problem with Posner and Goldsmith’s book is that they simply punt on the European Union construction and integration of international law internally. How can one possibly talk about limits of international law without addressing the European empirical experience? The limits are determined more by the will to internalize that law – not on whether there is an obligation. Look at the law Mary-Ellen O’Connell notes in her ASIL Insight at http://www.asil.org – how far does it get internalized in each country. You can go back to Grotius on this – no need to remake the wheel.

    Many are tired of these apologists for lawlessness equating US foreign relations law with international law.

    Way too easy to cherry pick the way they do. These type of books remind me of the kind of neo-analysis we got at the beginning of the Reagan Presidency like George Gilder’s Wealth and Poverty.

    Happy it sells books and does rub the Administration in the way it wants to be rubbed – but that does not deter from the fact that the book has the above fatal flaws.

    A more interesting book would be why this unrelenting attack on traditional international law that has alienated so many conservative as well as liberal scholars? Maybe it should be called “The limits of limiting international law.”


    Ben Davis

    Associate Professor of Law

    University of Toledo College of Law

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