Seeing beyond the Limits of International Law

Seeing Beyond the Limits of International Law THE LIMITS OF INTERNATIONAL LAW, Jack L. Goldsmith[dagger] & Eric A. Posner.[double dagger] Oxford: Oxford University Press, 2005. Pp. 226. $29.95. If the 1990s were for many a time of optimism about the efficacy of international law and legal institutions,1 the first decade of the twenty-first century has brought a backlash, at least in the United States. The Bush administration's hostility to international law is well documented,2 Republicans in Congress are decrying the mere citation of foreign or international sources in U.S. Supreme Court opinions,3 and a cadre of international law scholars, seemingly motivated by concerns that international legal norms might pose undue limitations on state prerogatives or democratic processes, are arguing against the implementation of such norms domestically.4 Even those who are inclined to be more sympathetic to international human rights law have purported to show, through quantitative analysis, that human rights treaties may not affect actual state behavior.5 Many of these attacks, however, misconceive the ways in which international law is most likely to operate. Because international law generally is not backed by coercive force, it of course does not literally bind state actors. Thus, if international law affects behavior at all, it does so far more subtly. For example, it may slowly change attitudes in large populations, effecting shifts in ideas of appropriate state behavior. In addition, international legal norms may well empower constituencies within a domestic polity and provide them with a language for influencing state policy, thereby affording them leverage that they would not otherwise have had at their disposal. Such subtle processes may not, at least on the surface, seem to play a role in constraining state behavior. And they cannot necessarily be measured in immediately quantifiable ways. But, over time, we may see changes that are more profound than those brought about by an ephemeral coercive statute enacted by a legislature. Thus, if we want to study whether international law has real effects, we need to analyze these processes rather than limit our gaze to the question of whether international law binds states coercively. It is for this reason that the latest addition to the international law backlash genre, The Limits of International Law, by Jack Goldsmith and Eric Posner,6 is so disappointing. Tendentious and unpersuasive, the book deploys the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its rational state interest and therefore obeys international legal norms only to the extent that such norms serve those pre-existing interests. Thus, they argue, international law is sometimes important, but only as a mechanism by which nation-states negotiate power, not as an independent limitation on the prerogatives of state governments. Yet, while there is certainly much work still to be done to fully study the variety of ways in which international legal pronouncements might or might not affect the behavior of state and non-state actors, The Limits of International Law advances the discussion hardly at all. This is because, as with much rational choice analysis,7 Goldsmith and Posner must start with a series of assumptions that effectively clear away almost all of the ways in which international law and legal institutions are most likely to be effective. First, they assume that state interests exist independently of the social context within which the interests are formed. But a policymaker's idea of what is in the state's interest is always and necessarily affected by ideas of appropriate action, and these ideas are likely to be shaped-even if unconsciously-by legal norms, including the norms of international law. …