In 'The Limits of International Law,' Jack Goldsmith and Eric Posner use the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its own rational interest and obeys international legal norms only to the extent that such norms serve those pre-existing interests. In this Review Essay, I argue that their vision of international law is deeply flawed. In particular, I take issue with the authors' assumption that states simply have pre-existing unitary interests that they then rationally pursue. First, I argue that state interests do not arise in a vacuum. Rather, a policymaker's idea of what is in the state's interest is always and necessarily affected by ideas of appropriate action, and these ideas are likely to be shaped - even if unconsciously - by legal norms, including the norms of international law. Second, I suggest that, because states are made up of multiple bureaucrats at various levels of authority, with various political ideologies and institutional loyalties, the idea that a state could have a single interest is simply unfathomable.
As a result of their assumptions, Goldsmith and Posner end up arguing against a straw man. Only the most diehard internationalists would suggest that a state already completely united behind both a set of interests and a strategy for attaining those interests will practice self-denial solely because that strategy contravenes international law. But it is ludicrous to assume that coercively preventing states from doing that which they have already decided to do is the only way of evaluating the efficacy of international law. Indeed, even in the domestic context, legal norms are effective largely because people imbibe those norms and adopt them as their own, not because a police officer stands behind the next corner waiting to pounce. And law's impact is not found only in literal obedience to rules, but in the everyday categories of our discourse.
Thus, I argue that whatever the limits of international law may be, the analytical framework Goldsmith and Posner construct will not help us find them. In the Essay, I first outline their argument and focus particularly on the crucial sets of assumptions they apply to their analysis. Then, drawing on sociolegal scholarship and actual examples of international law as it operates on the ground, I discuss two ways in which international law can have a significant impact, both of which are ignored by Goldsmith and Posner. First, I explore the sociolegal concept of legal consciousness and suggest that, over time, international law norms may alter what both governmental actors and larger populations view as right, natural, just, or in their interest. Second, I discuss various instances in which individual constituencies both within and outside of government have deployed international legal norms to gain leverage and affect state policy choices. Finally, I take on the distorted view of cosmopolitanism Goldsmith and Posner use, and suggest that cosmopolitanism (defined not as universalism but as the recognition of multiple community affiliations) potentially offers a far more useful analytical lens for conceptualizing the ways in which multiple law-making communities construct, disseminate, and negotiate legal norms than the schematic simplifications of internationalized rational choice theory.
84 Tex. L. Rev. 1265-1306 (2006)