Eighty-eight years ago, Oliver Wendell Holmes authored one of his most famous opinions in the case of Missouri v. Holland, purporting to settle the question of whether states' rights limited the treaty power. His rejection of any such "invisible radiation" from the Tenth Amendment has engendered dedicated defenders and passionate critics ever since, from Senator Bricker, up through more...
In How International Law Works I grapple with the question of how states make the trade-off among the various features of agreements, including hard and soft law. I am not sure I agree that Kal’s empirical puzzle actually exists, but let’s assume it does and see why that might be so. A very similar question is discussed in...
Andrew’s reply makes a good point. I share his skepticism about my proffered explanation for the choice of hard law over soft law. The problem is that we have an empirical puzzle that demands explanation, and we lack a good one. If there is a better explanation than the one I put forward, I have not yet seen it. The...
Kal’s comment raises some interesting questions about the nature of international law and what it means to be a treaty rather than soft law. He juxtaposes hard law and soft law, as I did in my opening comments. Let me suggest another comparison – hard law in the international context and domestic law. The contrast here is...
The conversation thus far has been interesting, but I want to bring up some new issues that we have not yet discussed. I have long been interested in how international agreements work, in part because since the end of the Second World War (at least) international agreements have been the most significant source of international law, and in part...
I confess that I am a little surprised by the focus on methodological issues that has emerged in the discussion of my book. My intention was to adopt non-controversial rational choice assumptions widely used across both law and the social sciences. This approach to modeling behavior is dominant, for example, in both economics and political science. Equally...
I thank everybody for their comments regarding the reputational posts. I think this conversation has been excellent up to now and hope this post will add some substance as we approach, what seems to me, to be some agreement regarding the reputational element of rational choice. Before I begin, let me also be clear about my terminology. I agree...
Thank to Jeff for this thought provoking comment and his kind words about my book. I am not sure that my response addresses all his concerns, but I hope it at least speaks to some of them! Let me first state that while I agree with much of what Jeff has stated in his post, I do not agree when...
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...
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...
Let me just offer a quick additional reflection on the question of whether rational choice theory may help explain the conundrum of why states sign human rights treaties. The easiest explanation is when the human rights commitment is bundled together with other provisions in a treaty, and the cost of making the human rights commitment is offset by other benefits derived...
Alex Geisinger’s thoughtful comments return to some of the themes I touched on in my earlier response to Roger Alford. Alex is more forceful, however, challenging whether the theory I advance is able to account for the role of reputation in treaty formation. I think the place to begin here is some terminology. The use of the...
