International law scholarship has predominantly been doctrinal in nature. Nevertheless, international law and rational choice assumptions have been closely connected for a long time. For the most part, realist thinkers in international relations are the ones who have used rational choice assumptions to explain states’ behavior (though [liberal] institutionalist thinkers have done so as well), but they have rarely entered into legal intricacies. Instead, “big theories” have been at the forefront of the discussion. Economics is the study of rational choice. The rational choice approach to international law allows for theoretical conjectures that can be tested empirically regarding two questions: What are the effects of international law (international law as explanans; this question includes its effectiveness)? Why do states legalize their relations (international law as explanandum)? The rational choice assumption has been a cornerstone of positive economics and economic analysis of law, which applies economic methods to analyze law. International law is a rather young subject of economic analysis of law, but it has gained prominence since 2000. Following the traditional international law assumptions in the aftermath of the Westphalian peace, the nation-state has mostly been analyzed as a unitary actor, or what has been described as a “black box” state, but in the discussion on international governance this has also changed recently. Analyzing international law through the rational choice perspective has become a joint enterprise by economists, international lawyers, and rational-choice political scientists, focusing on more precise questions of international law scholarship intended to inform doctrinal scholarship as well. Rational choice analysis may be used to diagnose substantive problems and frame better legal solutions, explain the structure or function of particular international legal rules or institutions, and reconceptualize or reframe particular institutions or international law generally, such as customary international law. It is well acknowledged that legal scholars alone cannot accomplish these tasks, and that social science approaches are needed to address them. By now, many international relations scholars, as well as law and economic scholars, start from a rationalist assumption but do not exclude other explanatory factors used by other theories. The scholarship is US-driven, and English is the main language in which research on the topic is published.
Realist accounts of international relations scholarship have implicitly, or even explicitly, used rational choice assumptions in order to explain and predict states’ behavior: states pursue power rationally. Classical realists (as well as neorealists) assume competition for security in the anarchical system of international relations; states play zero-sum games. Law is epiphenomenal to international relations. Goldsmith and Posner 2005 is the first book-length contribution in this tradition, but it also adds the economic analysis of law to study general international law as well as specific regimes in more detail (see also Goldsmith and Posner 2002. This highly controversial book has led to reactions by other law and economics scholars, political scientists, and international lawyers, such as Guzman 2008 and Trachtman 2008, which, in a more institutionalist tradition, assume international law to play a role in changing and structuring the behavior of states, making cooperation between states possible. Ever more international law and international relations scholars as well as economists are coauthoring to analyze international law. First formulations started around 1990 (see Abbott 1989, Dunhoff and Trachtman 1999, Slaughter 2001); for collected essays see, van Aaken, et al. 2008; Posner 2010; Eger, et al. 2014; an excellent volume for problems relating to general international law is Dunoff and Pollock 2013.
Abbott, Kenneth W. “Modern International Relations Theory: A Prospectus for International Lawyers.” Yale Journal of International Law 14 (1989): 335–411.
This early article on the use of rational choice in international law is still a good starting point to understand basic concepts and the application of economic tools to international law. Abbott takes a functional view on international law, as most economists would do.
Dunoff, Jeffrey L., and Mark A. Pollack, eds. Interdisciplinary Perspectives on International Law and International Relations: The State of the Art. Cambridge, UK: Cambridge University Press, 2013.
The first part contains theories about international law from different international relations perspectives but, in the substantive part, most contributors take a rational choice approach to international law. The book covers a broad range of issues, from international law making to adjudication and compliance. It is ideal as a starting point to discover the rational choice approach in context.
Dunoff, Jeffrey L., and Joel P. Trachtman. “Economic Analysis of International Law.” Yale Journal of International Law 24 (1999): 1–59.
Another early article explaining why international lawyers, if being prescriptive, should also start being explanatory, using social science. Authors analyze international law and explain rationalist tools that are largely borrowed from economics and, in several cases, from law and economics. They also outline the limits to rationalist analysis but sketch a research agenda for further research that is currently followed.
Eger, Thomas, Stefan Oeter, and Stefan Voigt, eds. Economic Analysis of International Law. Tübingen, Germany: Siebeck/Mohr, 2014.
The contributors to this volume represent a largely European perspective. The topics covered treat classic issues of international law such as comity or custom as well as highly topical issues such as Internet privacy, private military contractors, the fight against piracy, and large-scale agricultural investments.
Goldsmith, Jack L., and Eric A. Posner, eds. Special Issue: Rational Choice and International Law. Journal of Legal Studies 31.S1 (2002).
A special issue on rational choice and international law, the first one of its kind, and thus partially exploratory with more fundamental questions, and partially devoted to specific topics, such as corruption, trade, and environment, mirroring the fundamental discussion.
Goldsmith, Jack L., and Eric A. Posner. The Limits of International Law. Oxford: Oxford University Press, 2005.
The first application of economic analysis to international law in book form. Applies simple game theory to general and specific questions of international law, such as sources and compliance. Proved highly controversial because the authors purport that international law is epiphenomenal to states’ behavior.
Guzman, Andrew. How International Law Works: A Rational Choice Theory. Oxford: Oxford University Press, 2008.
A reaction to Goldsmith and Posner 2005, refining the game theoretical analysis and explaining why and under what circumstances international law can be relevant to states’ behavior. Guzman states that international law can be effective under certain circumstances, mainly using the reputational mechanisms to alter payoffs of states. He uses three Rs (reciprocity, retaliation, and reputation) to explain compliance with international law.
Posner, Eric, ed. Economics of Public International Law. Cheltenham, UK: Edward Elgar, 2010.
The essays in this collection use interdisciplinary perspectives to investigate issues in international law, all employing rational choice. The collections gather some of the seminal articles written on the economic analysis of international law.
Slaughter, Anne-Marie. “International Law and International Relations: Millennial Lectures.” Recueil des Cours 285 (2001): 9–250.
A very comprehensive discussion of the advantage of applying international relations theory to international law, and thus a forceful plea for the inclusion of social science in the analysis of international law of one of the most prominent international lawyers. All international relation theories are discussed, but the preference of the author lies in institutional liberalism, using a rational choice approach.
Trachtman, Joel P. The Economic Structure of International Law. Cambridge, MA: Harvard University Press, 2008.
Also a reaction to Goldsmith and Posner 2005, using a variety of economics tools to develop a systematic framework enabling students and scholars to apply economic analysis to the formation and application of international law, focusing on general international law. A highly recommended book for advanced students and scholars who want to explore the possibilities of economic tools for a social science analysis of international law.
van Aaken, Anne, Tom Ginsburg, and Christoph Engel, eds. Special Issue: Symposium: Public International Law and Economics. University of Illinois Law Review 1 (2008).
Provides an overview on the discussion of the rational choice approach to international law by US law and economic scholars, European international lawyers, political scientists, and economists. It features more general discussion on the application of rational choice to international law, but also addresses specific issue areas of international law. A dialogue between European and US scholars of international law clarifies methodological differences and different attitudes toward international law.
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