To Do Away with International Law? Some Limits to ‘The Limits of International Law’

摘要

Different methodological approaches to international law abound. Recently the rationalist, game-theoretical approach in the law and economics tradition has gained much prominence, certainly so in the United States. Within this tradition the volume by Professors Goldsmith and Posner purports to set a milestone by providing a comprehensive explanatory theory of international law with normative lessons in order to put international law and its scholarship on a more solid foundation. In principle, the combination of careful doctrinal description and consequentialist social science theory is to be welcomed. The way in which the authors pursue that goal is, however, questionable. They sometimes show a biased understanding of rationality, use only basic game theory, and give ad hoc explanations and examples, failing to account for more recent developments in international law. Not pursuing international law and economics any further, however, would amount to throwing out the baby with the bathwater. Instead, more sophisticated, constructive and thoughtful rationalist approaches to international law ought to be further developed. Even though the Goldsmith-Posner critique of international law scholarship is an opportunity to critically reflect on some of international law’s institutional and conceptual limitations, ‘The Limits of International Law’ have not yet been reached.