Varieties of International Law Skepticism
My purpose here is to provide a brief taxonomy of recent international law skepticism.
1. The Rational Actor Critique: In their book, The Limits of International Law, Jack Goldsmith and Eric Posner express skepticism that customary international law often influences the conduct of states. States are rational, self-interested actors and it is difficult for custom to reflect stable equilibria that reflect their continuing interests. Customary international law has much less scope than widely thought, and even when it exists, it is usually unstable.
2. The Political Process Critique: The process by which the content of customary international law is determined is nondemocratic, and provides little reason to believe that customary international law will maximize welfare, at least in comparison to judgments by the democratic branches of the political branches of the United States. This is obviously true when international law concerns matters with insubstantial spillover effects among nations, like the death penalty. Even when there are spillovers, the United States seems to have better incentives to provide international public goods for the world than the process which creates international law. Ilya Somin and I make this argument in Should International Law Be Part of Our Law?
3. The Sovereignty Critique: In a world where there is no collective enforcer of collective security, international law rules that seek to prevent a state from defending itself are dangerously utopian. On such fundamental matters, peace is more likely to be maintained if every sovereign (and the United States in particular) retains the discretion to act for itself. Jeremy Rabkin makes such points in his book, The Case for Sovereignty.
If the first critique proves accurate, one might believe that the second and third are largely superfluous, because customary international law may have little influence. Nevertheless the second and third critique might still be important if judges attempt to incorporate international law into an effective domestic system. The second critique might be sympathetic to international rules forged by treaties when these treaties are democratically ratified. The third critique, in contrast, might well reject being bound by treaties on some subjects. The second critique might also welcome the application of international law in dictatorial or totalitarian systems, on the theory that norms generated by international law are superior to the norms generated in such political systems. I invite readers to offer other forms of skepticism, regardless of their agreement or disagreement with their content.