Evaluating the Effects of International Law: Next Steps
| Author | Eric A. Posner |
| Date | 01 October 2010 |
| DOI | http://doi.org/10.1111/j.1758-5899.2010.00037.x |
| Published date | 01 October 2010 |
Evaluating the Effects of
International Law: Next Steps
Eric A. Posner
University of Chicago
A response to ‘Beyond Compliance: Rethinking Why International Law Really Matters’
Robert Howse and Ruti Teitel*
It is hard to quarrel with the claim that international law
scholars should pay attention to all of the effects of inter-
national law, and not just to compliance. In this respect,
Professors Howse and Teitel are on solid ground. I believe
that the (mostly unnamed) authors of compliance studies
are aware of this point and have not claimed that compli-
ance is all that matters. But there is a significant irony
here. To understand what it is, one must recall some intel-
lectual history.
Howse and Teitel say that ‘in most fields of legal
study, the question of why, how and to what extent the
actors bound by legal rules comply with them has been
a secondary, if not marginal, one for scholarly inquiry by
jurists’ (p. 128). This statement is incorrect. The ques-
tion of legal compliance has been an obsession in Ameri-
can legal scholarship, one that began in the early part of
the 20th century with the legal realist movement, and
then after a brief pause gathered momentum in the
1960s. Today, the difference between the ‘law on the
books’ and the ‘law in action’ is a significant theme in
scholarly inquiry, in every field of law (at least in the
United States, where the new international law skepti-
cism emerged) except – international law.
The easiest way to understand the new international law
skepticism that began in the United States in the late
1990s is as an application of these ideas from domestic
legal scholarship to international law scholarship. It may
well be, as Howse and Teitel argue, that the focus on com-
pliance is too narrow. I prefer to think that the proper
scope of a study depends on the question to be asked.
When governments or advocates propose a treaty that has
some goal – let’s say, the elimination of landmines – the
main question they will want to ask is whether the treaty
will in fact achieve that goal, which here is the elimination
of landmines. If they can expect signatories not to destroy
their landmines, that is certainly an important consider-
ation. They may also care about whether the treaty will
have other effects, positive or negative. But when these are
hard to predict, as they almost always will be, then it is not
surprising that compliance will be foremost among their
concerns. For this reason, compliance is a legitimate focus
for academics.
But the larger point is that the focus on compliance
arose in reaction to the once dominant and still wide-
spread assumption that international law ‘on the books’
works as advertised. This attitude, exemplified by Louis
Henkin’s (1979, p. 47) complacent line that ‘almost all
nations observe almost all principles of international law
and almost all of their obligations almost all of the
time’, echoes the formalist tenets that the legal realists
attacked.
The empirical work on international law is in its
infancy but some of it – particularly the work on human
rights treaties – has blasted holes in the Henkin view.
To resuscitate this view, scholars now argue that even if
states do not always comply with human rights treaties,
those treaties may nonetheless advance the cause of
human rights through a range of alternative pathways.
Howse and Teitel’s argument is a more general version
of this confession-and-avoidance claim. Howse and Teitel
cite Ryan Goodman and Derek Jinks, who propose a
theory that explains how norms could migrate from state
to state, but if Howse and Teitel are as serious about
empirical work as they claim, they would do well to
note that Goodman and Jinks do not supply statistical
evidence for their theory. Howse and Teitel also cite a
recent book by Beth Simmons. This is also an odd
choice. Simmons tests compliance in the narrow sense
Howse and Teitel criticize, while merely noting that the
effects of treaties can be more general. She does not
note that these general effects could be negative as well
as positive (Simmons, 2009, p. 365). It should be kept
*Howse, R. and Teitel, R. (2010) ‘Beyond Compliance: Rethinking
Why International Law Really Matters’, Global Policy, Vol. 1, No.
2, pp. 127–136. DOI: 10.1111/j.1758-5899.2010.00035.x
Global Policy Volume 1 . Issue 3 . October 2010
Copyright Ó2010 London School of Economics and Political Science and John Wiley & Sons Ltd. Global Policy (2010) 1:3 doi: 10.1111/j.1758-5899.2010.00037.x
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