Having set out general considerations and a research methodology framework for “Behavioral International Law" in previous posts, some readers might be wondering how this all cashes out for international law as a discipline?
In their path-breaking 1999 YJIL article on economic analysis of international law, Jeffrey Dunoff and Joel Trachtman noted that “almost every international law research subject could be illuminated, to some degree, by these research methods” [referring to economic analysis]. With similar caveats, it is tempting to say something similar and related about behavioral analysis and international law. Behavioral international law is not a ‘theory of everything’. Neither is it a normative framework of analysis, as such. But properly constructed behavioral research selectively employing the methodologies I describe here can significantly increase our knowledge in all areas of international law, with respect to many problems and puzzles.
In my article, I developed three examples that cover the entire spectrum of levels of analysis as well as research methodologies. In all of them, a mere theoretical application is sufficient to stimulate discussion by posing alternative hypotheses and explanations, but if one is concerned with empirical accuracy, field studies and experimental work is necessary. Moreover, the examples – essentially three mini-articles - cover diverse areas of international law (treaty law, WTO dispute settlement and international humanitarian law). I will briefly summarize two examples.
I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.
Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “Nudges.gov” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).
Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them - generally known as biases and heuristics - inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.
Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one.
[Tomer Broude is a Senior Lecturer, Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem; the following post continues our conversation on Shaffer and Pollack's When Cooperation Fails] Mark Pollack and Greg Shaffer well deserve the praise that the previous commentators have given them for their study of the transatlantic law and politics of GMOs, "When...
In his Roundtable Post, Kal Raustiala raises questions relating to one important aspect of the design of international tribunals: who get's the ball rolling, or in other words - who has standing and the right to bring a suit to the tribunal. I agree with his basic distinction between private actors as "fire alarms" (or whistle blowers) and states as...
As Julian Ku announced a few days ago, over the next few days Opinio Juris will be hosting a virtual preview of a Roundtable on "the Allocation of Normative Power to and among International Tribunals" that will be held at next weekend's APSA Annual Meeting in Philadelphia. Participants are: Roger Alford, Allison Danner, Jeffrey Dunoff, Laurence Helfer, Julian Ku, Thomas...