Author Archive for
Jeffrey Dunoff

Berman Book Discussion: Berman Agonistes

by Jeffrey Dunoff

[Jeffrey Dunoff holds the Laura H. Carnell Chair at Temple University Law School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman has produced a terrific, and terrifically ambitious, work of scholarship.  The book presents a compelling case that the current legal order is marked by multiple and overlapping international, transnational, national, sub-national and non-state normative orders.  Paul argues that relations among these various orders should be managed through a “cosmopolitan pluralist” approach that pays due respect to the interests that various norm-generating communities have in any particular dispute.  The text’s central jurisprudential and normative claim is that cosmopolitan pluralism is superior to its two main rivals, namely (i) universalist approaches that elide important normative differences among diverse communities, and (ii) territorially-based sovereigntist approaches that inappropriately privilege the interests of one community by ignoring the legitimate interests of others.

Although the “pluralist” strand of Paul’s argument promises to decenter the state as law-maker, ironically virtually all of the book’s examples of legal hybridity feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters).

Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international legal regimes, even though this issue has preoccupied public international lawyers for the better part of a decade (see here and here).  While Paul graciously cites to my work on regime interaction in his discussion of this phenomena (pp. 182-86), I wonder if GLP’s brief analysis does justice to this form of legal hybridity.

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A Parsimonious Approach to (How) International Law (Works)

by Jeffrey Dunoff

How International Law Works [HILW] is a terrific book. For current purposes, I am less interested in the specifics of Andrew’s arguments than I am in his larger project – the explanation of international law in rational choice/game theoretic terms.

HILW employs standard rational choice assumptions, for example, that states “are rational, self-interested, and able to identify and pursue their interests.” The book’s goal is to explore, in light of these assumptions, “how international legal obligations might influence state behavior.” Much of HILW’s analytical and rhetorical strength lies in its relatively parsimonious model of state preferences, interests and behavior.

My interest is in whether there is a connection between the parsimony of these rational choice assumptions and the relatively parsimonious vision of international law that emerges in HILW? Consider, for example, HILW’s the discussion of treaties. HILW tells us that “states make commitments of their own in order to extract commitments from other states.” We might ask if rational choice approaches compel this understanding of the purpose of treaties — and whether this account of states’ motivations for entering into treaties is incomplete. For example, states sometimes enter into treaties to lock in domestic reforms. Many argue that the Salinas government joined NAFTA to prevent future Mexican governments from adopting policies hostile to foreign investment. Other times, states enter into treaties for reasons that have little to do with the treaty’s underlying subject matter. Consider the Convention on Long-Range Transboundary Air Pollution; most states who signed this treaty had little interest in acid rain but viewed the treaty as a vehicle to promote East-West detente. Finally, states may enter into treaties for expressive reasons or to embarrass other states – think of the Apartheid Convention – and may harbor few illusions that the treaty will actually change state behavior.

Similarly, HILW is centrally concerned with “compliance,” which the book seems to take as referring straightforwardly to behavior in conformity with treaty obligations. But as Kal Raustiala, Ben Kingsbury and others have persuasively argued, the concept of compliance is hardly straightforward. Rather, the significance of behavior in conformity with rules will vary significantly depending on how one understands the nature, purpose and functions of “international law.” Traditional positivist accounts are rule based. But there are competing process-based views, including the New Haven School’s vision of law as a process of authoritative and controlling decision making, and recent accounts that understand law in terms of a transnational legal process. Other approaches would include liberal accounts, which focus on the compliance as resulting from particular constellations of domestic political forces, and competing constructivist accounts. The point is that any particular conception of compliance presupposes a contested and controversial understanding of international law.

So I think the larger methodological issues HILW raises relate to the relationship between any particular understanding of international law and efforts to construct game-theoretic accounts of how international law works. Can rational choice shed light on which of these competing theories of international law to embrace? More importantly, does the parsimonious rational choice account of state behavior drive the book’s conception of international law — or does the parsimonious conception of international law drive the game-theoretic analysis that follows? In other words, might the very definitions of relevant issues, actors, and preferences in rational choice accounts depend on an unacknowledged (and controversial) conception of the preexisting international order? HILW’s focus on, say, treaties rather than evolving international regimes; on sovereign states to the virtual exclusion of other relevant international legal actors; and on compliance as conformity with rules all presuppose a particular—and controversial— vision of the international legal order.

In short, can rational choice accounts be built upon conceptions of international law that view it more as a process of authoritative decision making than as a bundle of rules, that focus more on the evolving trajectory of complex legal regimes than on the ratification of treaty norms, and that understands compliance not simply as a matter of rational calculation but also as a product of internalized identities and norms of appropriate behavior. If the answer to this inquiry is “no,” than we can understand HILW as an important illustration of both the promise – and the limits – of rational choice explanations of how international law works.

Can Domestic Court Defiance Strengthen International Tribunals?

by Jeffrey Dunoff