Eric A. Posner

 

On his book The Perils of Global Legalism

Cover Interview of November 02, 2009

The wide angle

International legal scholars have, with only a few exceptions, taken a largely uncritical approach to the international legal institutions that they study.  Compliance with international law is taken for granted, and the argument has mainly concerned how international law should be advanced.  But compliance is the central problem of international law.

If compliance is assumed to occur, then there is little to debate—we might as well create as much international law as possible.  Because states have trouble cooperating, they can only punish law violators with difficulty, with the result that states can often violate international law with impunity.  The challenge for scholars, politicians, and diplomats is to design forms of international law that are robust and to recognize the outer limits of what international law can accomplish.

This position is controversial among international law scholars, but it is more common among political scientists, many of whom are skeptical of the efficacy of international law, and others of whom have focused the critical tools of rational choice on them.  My book follows in this latter tradition: it attempts to understand international law as the result of states rationally following their national interest.

The major question is how much trust can we put in international law and institutions.  Should the United Nations be treated as a kind of proto-government of the world, or as an occasionally useful mechanism for coordinating the actions of the great powers?  On the first view, we should work to reform and improve the United Nations; on the second view, we should use it when it is useful and not otherwise.  Should international courts be understood as the ultimate arbiters of international justice or occasionally useful devices for resolving low-level disputes between states?  On the first view, we should put our energy into constructing and supporting international courts; on the second view, we should use them only when necessary.  Do human rights treaties cause states to improve their treatment of their citizens, or are they largely meaningless?  On the first view, our efforts should center on the existing human rights treaties; on the second view, we might think more about other ways of helping people, for example, through development aid.  I take the skeptical side in these debates.

I began writing about international law in the late 1990s after a colleague pointed out that my longstanding interest in rational choice explanations of decentralized behavior, social norms, and similar phenomena could be applied to international law.  Much of social behavior is effectively unregulated—the government doesn’t regulate our friendships or much of our family life or even, it turns out, much of the business world.  International relations are similarly unregulated.  This parallel—the absence of (national) government in our social lives, and the absence of (world) government in international relations—got me thinking about international law.