More on Human Rights and Rational Choice

by Andrew Guzman

I think the discussion of rational choice explanations for human rights treaties has become a little muddled due to a lack of clarity in terminology. In particular, two terms need to be clarified. First, a “rational choice” approach implies an approach in which states have preferences which are complete, transitive, and stable. In my book and in almost all rational choice discussions, there is an additional assumption that states are unitary actors. This last assumption is sometime relaxed in an ad hoc way to explain some particular feature of the world that is otherwise difficult to get at. Like many others, I do this from time to time in my book.

Roger’s last comment on human treaties looks to a domestic law explanation for American participation in the CEDR. It is appropriate to call this a rational choice explanation, and it may well be the best explanation we have. The problem for creating a theory of international law is that this domestic influence does not generalize easily. To be sure one can observe that domestic politics matters and that virtually anything states do is affected by them. This is close to what liberal theories attempt to do – they look to domestic interest groups and politics to explain events. Ideally, we would have a model of domestic politics that would explain the preferences of states at the international level. Unfortunately we do not have a strong enough theory of domestic politics to go much beyond the statement that they matter. We have only a very crude understanding of when one domestic view will trump over another.

The other term I want to mention is “internalization.” When Alex used this term I took him to be referring to preferences formation, akin to the argument Harold Koh has advanced for why international law is complied with, the work of Goodman and Jinks, and the views of constructivists in political science. If preferences can change they lose their transitive property, and so are no longer rational. I discuss constructivism briefly in the introduction to my book, and in the interests of space will not repeat myself here. It is enough to say that constructivism is a difference approach that needs to elaborated and evaluated on its own terms. We cannot do that in a serious way here.

When Roger uses the phrase “internalization of a norm” he is thinking of the impact of domestic politics. When I use it I mean that domestic preferences can be changed by international law (or international norms). I do not think we disagree very much beyond this semantic difference.

Finally, I should add that my preference, as evidence in the book (and elaborated in the first chapter), is to stick with the assumption of a unitary state. To be sure, this reduces the flexibility of the model, but that is a virtue, not a vice. If domestic concerns are allowed in, almost anything can be explained with a wave to interest group politics. To think seriously about domestic politics, then, requires a careful inquiry into specific events; a practice best suited to positive explanations of individual past events rather than general models of behavior.

http://opiniojuris.org/2008/02/12/more-on-human-rights-and-rational-choice/

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