A little while ago, Scott M. Sullivan wrote a post on this blog about The Limits of International Law, a book by Jack L. Goldsmith and Eric A. Posner. After describing the content of the book and indicating that he agrees with it, he issued a challenge to his co-bloggers :
“I challenge my co-bloggers (or any other commentator) to refute them. My point is not that these ideas are infallible, but that they are much stronger than you might think.”
I can’t meet that challenge for two reasons. First because I know next to nothing about international law, and more importantly because I agree with him: this book does seem to be very interesting. In fact this type of explanatory approach which interprets the behaviour of actors as the result of strategic actions is used in other fields of legal academia. J. Elster has applied rational choice theory, of which he is a master, to several areas of constitutional law. Under a different terminology, the same type of approach it developed by M. Troper a French legal theorist and constitutional lawyer. Several books, published by his students, explain points of constitutional law as the result of strategies put in place by public institutions seen as rational actors pursuing an institutional or personal interest. At first M. Troper’s position was seen as very radical and was marginal. Over the years he has been able to convince a large part of his colleagues and his views now tend to become main-stream.
J. L. Goldsmith and E. A. Posner point out the differences between their approach and that of the classical international law scholarship, on one side, and that of International Relations, on the other. They need to make a strong claim because they are calling for a major change in methodology. And indeed they do: they believe that the programme of research pursued by classical international law scholarship is a dead-end. This position is excessive. It is true that the dominance of classical, formalist, legal academics is an obstacle to a sufficient understanding of how the law works. But dominance of any type of methodology would have similar results. We can simplify things by opposing two points of view on the law: an internal one which takes the law seriously and an external point of view which takes Power, ambition, self-interest seriously (as explanatory factors of the law). The internal point of view, which is the one used by classical International Law scholars is necessary for two reasons: 1/ it provides a normative account of the law – which the external point of view does not get into – and is therefore useful not only to understand the law but mostly to judge it, to interpret and apply it; 2/ it provides an alternative explanation (one which is further from reality I believe, but still valuable) of the law. J. L. Goldsmith and E. A. Posner give the bad man’s account of the law, a cynic, and realist account while classical scholars give the good man’s account, the cartoon, the Walt Disney account. As most men who make international law are neither Stalin nor Mickey Mouse, it is good to have both paradigms to approach what probably goes on in reality.