Final Thoughs on Discussion of How International Law Works

by Andrew Guzman

As this it my final post in connection with this discussion of my book, How International Law Works, I want to thank Opinio Juris for giving me this opportunity, and the commentators for so thoughtfully sharing their opinions. Much of the discussion has been about the methodology used in the book, and as I have had my say on that subject in my several prior posts I will not dwell on it now.

Let me instead mention a couple of things that I hope the book has achieved or will achieve as more people get the chance to read it. I hope the book provides a foundation for further rational choice analysis of international law. I, for example, have recently been working on international tribunals, a subject that is not covered in detail in the book. More could be said from a rational choice perspective on just about any international law topic.

I also hope the book contributes to the discourse between international law and international relations. These fields have grown closer in the last twenty years, and I think both have benefited. This book seeks to address both sides of this narrowing divide, and hopefully is useful to both.

I very much want this book to also speak to more traditional international law scholars. There is no natural tension between conventional views of international law and rational choice. It is true that rational choice, because of its emphasis on reasoning from assumptions can sometimes seem abstract and disconnected from reality, but that is exactly why it is important to have constant reminders of the need to address real question and real puzzles. A rational choice approach, it seems to me, strengthens the study of international law in part because it provides theoretical underpinnings with which international law and legal scholars can respond to critics, analyze hard questions, and debate the role and workings of the field.

The world needs international law now, perhaps more than ever before. Problems from climate change to nuclear proliferation to hunger to disease to terrorism will only be solved with the help of international legal structures and institutions. Whatever else international law scholars do, we need to be thinking about when international law can help with these problems and what structures or approaches are most effective. We, need, in short, to think very hard about how international law works.

One Response

  1. I believe, with others here, that the explicit use (and defence) of rational choice theory is exemplary if only because it will help us better assess its strengths and weaknesses as a methodological tool. It’s also helpful, I think, to see how the possible limitations of rational choice theory are being discussed in other fields, like Political Science, Economics, and even (the sub-field of ) “law and economics,” where this method has been in use for some time. One critique from within economics suggests it leads to the undue neglect of the role of social norms (even though E. Posner has provided us with a rational choice model of even social norms!), and some economists are indeed beginning to think afresh about this subject (perhaps the best place to start by way of an introduction to social norms is Cristina Bicchieri’s The Grammar of Society: The Nature and Dynamics of Social Norms, 2006).

    Of course economists like Amartya Sen and Kaushik Basu appear to have a rather nuanced appreciation of the virtues and shortcomings of rational choice theory in their field. And the economist and economic historian Deidre McCloskey has done much to warn us of the dangers of an unreflective employment of methodologies as well as the unavoidability of rhetoric and the importance of a full-bodied rhetorical analysis. In Political Science, Ian Shapiro has been among the foremost critics of his discipline’s reliance on rational choice methodology (cf. Green and Shapiro, Pathologies of Rational Choice Theory: A Critique of Applications in Political Science, 1996, and Shapiro, Smith and Masoud, eds., Problems and Methods in the Study of Politics, 2004). And all parties should be familiar with S.M. Amadae’s Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (2003). Finally, the philosopher Hilary Putnam warns us of the hazards of succumbing to “method fetishism” in general, an admonition we should all keep in mind.

    That said, I hardly think the use of rational choice methodology has been exhausted in international law and politics and thus it deserves wider use within the field and I’m glad to learn your book is a sophisticated and systematic attempt in that direction. It strikes this reader as the best of available alternatives, of which there are few if any, especially if the study of international law is to be considered a “social science.” At the very least, it shows us that the Goldsmith and Posner volume represents an early and rather limited (if not unimaginative) albeit important application of this methodology, and thus should not serve to preclude others from experimenting with it.

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