Rational Choice and Broader Conceptions of International Law, A Response to Jeff Dunoff

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 he says that my conception of compliance presupposes a particular understanding of international law. My book’s central focus is an attempt to explain how a rule of international law can affect state behavior. I think that question would be relevant under any of the conceptions of international law Jeff mentions. Everybody agrees that the impact of treaties, soft law, CIL, and norms on behavior is a central question in international law. In that sense, I think the book sheds light on the field regardless of one’s view of the nature, purpose, or functions of international law.

I think Jeff’s post poses two quite different questions. The first is the familiar question of whether rational choice models are the one and only way to think about international law. The answer to this is clearly “no” as I say in the book and have said in earlier posts here at Opinio Juris. Liberal theories and constructivist theories, as Jeff mentions, have some claim to informing our understanding of international law. In some ways these approaches are also compatible with rational choice models because they can help to explain state preferences which serve as the input for those models. In other ways the different approaches are at odds with rational choice, of course, so to some extent we are forced to choose among methodologies.

The second question seems to be whether a rational choice approach can address international law issues that do not focus on compliance with legal obligations or that do not define compliance in the way I do. Jeff asks if rational choice accounts can be build 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.”

Rational choice, because it has an underlying theory and because it is not committed to inflexible doctrinal categories (e.g., hard law v. soft law), offers a way to think through problems and questions fairly systematically. So, for example, if one thinks of international law as a process by which decisions are made, a rational choice model insists that you make some assumptions about how that process works. Once you specify the decisions that interest you, and how they are made a rational choice approach gives you the tools to move from those assumptions to some conclusions. Other approaches might be able to do the same thing, of course. I find reasoning about international law problematic, regardless of the methodology, when it fails to identify its assumptions and does not tell the reader how it gets to its conclusions.

I do not know of any way to think about the “evolving trajectory of complex legal regimes” without a much stronger sense of what causes the regime to evolve, what are its component parts, and so on. The main problem with complexity, I like to say, is that it is so darn complicated. Rational choice models sometimes do a poor job with complexity but this is not because they feature rationality, but rather because they are models. The human brain does not handle complexity well, and so we use models, or simplifications, or maps, even when we do not do so consciously. Rational choice is a way of bringing order to our thinking because it offers some simple and plausible, if imperfect, assumptions about behavior. The resulting conclusions will be mere approximations of reality, but that is the inevitable result of any modeling process. Complaints about the fact that the models do not yield perfect representations of reality (to be clear, Jeff is not making such complaints in his comment) are misguided. We have no choice but to simplify. The question is how we will do it.