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RATIONALISM AND REVISIONISM IN INTERNATIONAL LAW
by Oona A. Hathaway and Ariel N. Lavinbuk [ Full Text ] |
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119 Harv. L. Rev. 1404 (2006)
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| THE LIMITS OF INTERNATIONAL LAW. By Jack L. Goldsmith and Eric A. Posner. New York: Oxford University Press. 2005. Pp. 262. $29.95. |
| International law, which now touches on an astonishing array of activities, has moved to the center of public debate. Legal scholars have traditionally argued that international law is a powerful and necessary external limit on states’ pursuit of their own interests. Recently, however, Professors Jack Goldsmith and Eric Posner have aspired to argue precisely the opposite in The Limits of International Law. In their view, international law instead results from states’ attempts to maximize their interests. Professors Goldsmith and Posner argue that states have every right to place their sovereign interests first — indeed, democratic states have an obligation to resist any form of legal globalization that may threaten their right to govern themselves.
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| Professors Goldsmith and Posner advance a rationalist, interest-based perspective that, until recently, was largely absent from modern international law scholarship. At the same time, they provide a framework that unites a set of critiques that have recently appeared in law reviews. What began as a disdain for the incorporation of customary international law by U.S. courts has developed into a revisionism deeply critical of all international law scholarship. Even those who reject The Limits of International Law must acknowledge the significance of the rationalist-revisionist convergence that it reflects. |
| Ultimately, however, The Limits of International Law is marked by limits of its own. Professors Goldsmith and Posner make a provocative case, to be sure, but in the process they claim both too little and too much. If all Professors Goldsmith and Posner sought to do was demonstrate that international law can be understood through the lens of self-interest, then we would suppose that they have accomplished this much. But their book would then be a contribution of little significance, as such accounts have long dominated political science scholarship and have increasingly found their way into international law scholarship. |
| If, however, Professors Goldsmith and Posner’s goal is to understand how international law works in practice, then they claim too much. Their thin outline of a theory is not nearly enough to help us understand international law. They do not explain, for example, which interests matter, how they are formed, or how we are to discover them. Though they arrive at bold conclusions about the “limits” of international law, these conclusions do not follow from the (thin) rationalist theory that Professors Goldsmith and Posner present. |
| This does not mean that answers to the difficult questions posed by Professors Goldsmith and Posner cannot be found. If anything, The Limits of International Law demonstrates the need for a new rationalist research agenda unburdened by revisionist commitments. The next generation of scholarship must move past stale debates over whether international law exists or matters to instead address how it matters, under what conditions, and why. Such a shift promises substantial theoretical, empirical, and practical payoffs that The Limits of International Law simply fails to provide.
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