Nash Equilibrium and international law

Cornell Law Review

Volumn 96, Issue 4, 2011, Pages 869-899

  Ohlin, Jens David ^a  

^a NONE

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EID: 79959409313     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (219)

1. See THOMAS C. SCHELUNG, THE STRATEGY OF CONFLICT 3-20 (2d ed. 1980) (discussing the "retarded science of international strategy").
2. Cf. JOEL P. TRACHTMAN, THE ECONOMIC STRUCTURE OF INTERNATIONAL LAW 4-5 (2008) (discussing how the social science methodologies of modeling and empirical testing can generate and validate predictions and hypotheses).
3. See SCHELUNG, supra note 1, at 7 (noting that" [w] hat is impressive is... how vague the concepts still are[] and how inelegant the current theory of deterrence is");
4. id. at 213-14 (explaining the Prisoner's Dilemma);
5. id. at 225-26 (using the Prisoner's Dilemma to explain coordination and cooperation regarding warning systems).
6. See, e.g., Kenneth W. Abbott, Modem International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335, 337-38 (1989);
7. John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 HARV. INT'L L. J. 139 (1996). (Pubitemid 126393969)
8. See, e.g., John K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remethation in the Law of Treaties and the Law of State Responsibility, 83 VA. L. REV. 1, 8, 74-75 (1997). (Pubitemid 127445619)
9. See, e.g., Peter J. Katzenstein, Introduction: Alternative Perspectives on National Security, in THE CULTURE OF NATIONAL SECURITY: NORMS AND IDENTITY IN WORLD POLITICS 13, 17-26 (Peter J. Katzenstein ed., 1996) (discussing the effects of cultural-institutional context and political identity in state action);
10. see also ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS 198 (1999) (defining national interest to include physical survival, autonomy, economic well-being, and collective self-esteem).
11. See, e.g., THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 42-45 (1995) (suggesting that states may act a certain way because of their beliefs about what membership in the community of nations entails);
12. THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 25 (1990) (arguing that nations obey rules because they perceive the rules to have a high degree of legitimacy);
13. LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 46-48 (2d ed. 1979) (rejecting the cynical view that state compliance only occurs in cases of rational expected outcomes);
14. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L. J. 2599, 2602-03 (1997) (noting that "international law norms now help construct national identities and interests" and analyzing the process of "interaction, interpretation, and internalization of international [legal] norms").
15. See, e.g., JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005);
16. Eric A. Posner, Do Slates Have a Moral Obligation to Obey International Law?, 55 STAN. L. REV. 1901 (2003). The current wave is "new" because it harkens back to a first wave of prominent skeptics of international law.
17. See generally HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE (2d ed. 1954) (updating a first edition that discussed the obsolescence of the sovereign nation state and warned against the illusory hopes for the newly established United Nadons).
18. GOLDSMITH & POSNER, supra note 8, at 184 (concluding that "[w]hen states cooperate in their self-interest, they naturally use the moralisdc language of obligation rather than the strategic language of interest. But saying that the former is evidence of moral motivation is like saying that when states talk of friendship or brotherhood they use these terms, which are meant to reflect aspirations for closer relations, in a literal sense").
19. Goldsmith and Posner thereby presume that the language of morality and the language of interest are mutually exclusive categories-a proposition they never explicidy defend.
20. See also id. at 100 (distinguishing the view that states comply with international law because it is the right tiling to do from the view that states comply when it is in their self-interest).
21. Id. at 36-37 (arguing that, in treaty contexts, states may achieve "shallow multistate cooperation" and that, in the context of customary international law, "genuine multistate cooperation is unlikely to emerge");
22. see also id. at 87 (asserting skepticism that "genuine multinational collective action problems can be solved by treaty").
23. Id. at 87 (describing how cooperation in pairs creates a multilateral regime).
24. Id. at 88 (describing the "strong pattern in international law" whereby threats of retaliation are nearly always the responsibility of the victims of violations and concluding that the "enforcement of multilateral treaty regimes is usually bilateral").
25. !3 See id. at 87-88.
26. Id. at 66 (arguing that theorists inflate context-specific and temporally-limited behavioral patterns, coincidences of interest, and situations of coercion into exogenous rules of customary law).
27. Id. at 36 (discussing the costs associated with the multilateral model, including increased costs of monitoring and the risk of undetected free-riding).
28. Id. at 32-35 (describing coordination problems).
29. Id. at 60 (recalling tiiat the diree-mile territorial sea rule was insisted upon by states widi powerful navies but that even these powerful states were often unable to make credible direats to enforce the rule).
30. For a full resoludon of this point, see infra Part III. B.
31. See, e.g., Goldsmith & Posner, supra note 8, at 150-51 (discussing reciprocal compliance in the context of GATT).
32. See id. at 100.
33. Id. at 185 (arguing that a moral obligation to comply with international law is illusory).
34. Id. at 205-06.
35. Id. at 209-15.
36. See also Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 STAN. L. REV. 1667, 1675-82 (2003) (discussing the limitations on ascribing strong cosmopolitan sentiments and duties to liberal democratic governments).
37. For a particularly trenchant example, see Robert Hockett, The Limits of Their World, 90 MINN. L. REV. 1720 (2006)
38. (reviewing GOLDSMITH & POSNER, supra note 8).
39. See, e.g., Thomas M. Franck, The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 AM. J. INT'L L. 88, 90 (2006) ("Not surprisingly, however, the claim [of law's fecklessness] resonates strongly in the halls of American governance.").
40. For a classic example, see MARY ELLEN O'CONNELL, THE POWER AND PURPOSE OF INTERNATIONAL LAW: INSIGHTS FROM THE THEORY AND PRACTICE OF ENFORCEMENT (2008).
41. See, e.g., ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY 13 (2008) (providing an explanation of international law's effectiveness from a rational choice perspective).
42. Although Guzman uses game theory models expertly to demonstrate the effectiveness of international law, id., he does not directly dwell on the issue that I have raised here, i.e., whether the assumption of self-interest implicit in the Prisoner's Dilemma undermines international law's essential normativity. Guzman has pursued his analysis in a number of important essays.
43. See, e.g., Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CALIF. L. REV. 1823 (2002) [hereinafter Guzman, A Compliance-Based Theory] (presenting a theory of international law in which compliance occurs in a model of rational, self-interested states);
44. Andrew T. Guzman, Reputation and International Law, 34 GA. J. INT'L & COMP. L. 379 (2006) [hereinafter Guzman, Reputation and International Law] (describing expected loss of reputation as one mechanism of ensuring compliance);
45. Andrew T. Guzman, Saving Customary International Law, 27 MIICH. J. INT'L L. 115 (2005) [hereinafter Guzman, Saving Customary International Law] (mapping out a theory of customary international law based on a model of rational choice);
46. see also Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 YALE J. INT'L L. 1 (1999) (exploring the actual and potential application of law and economics to international law).
47. See, e.g., GOLDSMITH & POSNER, supra note 8, at 100. Other commentators have noted the lack of support for this assumption.
48. See, e.g., George Norman & Joel P. Trachtman, The Customary International Law Game, 99 AM. J. INT'L L. 541, 541-42 (2005). The argument presented by Goldsmith and Posner relies on the proposition that customary international law is based on opinio juris and that acting in self-interest precludes acting out of a sense of legal obligation.
49. See GOLDSMITH & POSNER, supra note 8, at 14-15. The answer to this skeptical challenge lies in properly understanding opinio juris as "the intent of states to propose or accept a rule of law that will serve as the focal point of behavior, implicate an important set of default rules applicable to law but not to other types of social order, and bring into play an important set of linkages among legal rules."
50. Norman & Trachtman, supra, at 542;
51. see also José E. Alvarez, A BIT on Custom, 42 N. Y. U. J. INT'L L. & POL. 17, 43 (2009) ("That states have or may have had 'economic' reasons to conclude a treaty does not exclude other normative effects produced by these treaties' entry into force, subsequent practice under them, or efforts to enforce them.").
52. GOLDSMITH & POSNER, supra note 8, at 87-88.
53. Cf. Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency, in THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES 85, 92-94 (Eyal Benvenisti & Moshe Hirsch eds., 2004) (describing the use of customary international law for shifting to a new, more efficient equilibrium);
54. Charles Lipson, Why Are Some International Agreements Informal?, in INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 293, 297-98 (Bedi A. Simmons & Richard H. Steinberg eds., 2006) (discussing how tacit understandings and implicit rules may create a Nash equilibrium).
55. See DOUGLAS G. BAIRD, ROBERT H. GERTNER & RANDAL C. PICKER, GAME THEORY AND THE LAW 39-41 (1994).
56. See KAUSHIK BASU, PRELUDE TO POLITICAL ECONOMY: A STUDY OF THE SOCIAL AND POLITICAL FOUNDATIONS OF ECONOMICS 114-16 (2000) (describing the problem of choosing between multiple Nash Equilibria);
57. see also BAIRD ET AL., supra note 33, at 39-40 (discussing a classical example of a focal point);
58. SCHELLING, supra note 1, at 110-12 (discussing focal points).
59. Cf Avery Katz, The Strategic Structure of Offer and Acceptance: Game Theory and the Law of Contract Formation, 89 MICH. L. REV. 215 (1990) (discussing game theory in the context of contract breach).
60. See Norman 8c Trachtman, supra note 30, at 542, 571.
61. See, e.g., Guzman, A Compliance-Based Theory, supra note 29 (presenting a theory of international law in which compliance occurs in a model of rational, self-interested states);
62. Setear, supra note 5, at 1 (examining the international legal rules that govern responses to treaty breaches from the perspective of rationalist theories of international reladons).
63. However, pace Goldsmith and Posner, the parties' self-interested compliance does not preclude their acting out of opinio juris.
64. See Norman & Trachtman, supra note 30, at 541-42;
65. see also Alvarez, supra note 30, at 44.
66. See GOLDSMITH & POSNER, supra note 8, at 87 (arguing that the free-rider problem is worse when an agreement involves large numbers of states).
67. See BASU, supra note 34, at 114 (discussing problem of multiple Nash Equilibria).
68. See HERBERT GINTIS, GAME THEORY EVOLVING: A PROBLEM-CENTERED INTRODUCTION TO MODELING STRATEGIC INTERACTION 109 (2d ed. 2009).
69. See, e.g., Andrew T. Guzman, Public Choice and International Regulatory Competition, 90 GEO. L. J. 971, 975 (2002) (discussing how choice of law and issues of public choice affect the substantive law adopted by states).
70. See id. at 984 (noting that there are "problems with international cooperation that make it inferior to well-functioning domestic systems").
71. See MICHAEL J. GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER: INTERVENTIONISM AFTER KOSOVO 3 (2001) ("It is widely agreed that the most important rules are rules governing use of force....").
72. See id.
73. See generally id. at 17-19 (describing the UN Charter and the Security Council's role in authorizing the use of force).
74. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 83 (4th ed. 2005) (describing the pact as a "watershed" moment in the development of jus ad bellum).
75. See MARY ELLEN O'CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE: CASES AND MATERIALS 114-17 (2005).
76. GLENNON, supra note 44, at 17-19.
77. Cf. Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AM. J. INT'L L. 124, 154 (1999) (discussing Council's impotence and failure to act in this area).
78. See, e.g., JOHN WESTLAKE, CHAPTERS ON THE PRINCIPLES OF INTERNATIONAL LAW 115 (1894);
79. HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 90 (8th ed. 1866);
80. THEODORE D. WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 184 (5th ed. 1879).
81. See O'CONNELL, supra note 48, at 240 (discussing the fact that the United Nations Charter prohibits force generally while leaving a limited exception for self-defense).
82. But see Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VILL. L. REV. 699, 702 (2005) (noting some uncertainty about "whether preemptive self-defense is permissible under international law, or whether it is permissible but only under certain conditions").
83. It is certainly true that not all states comply with the prohibition regarding the use of force. However, Henkin must surely be right that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."
84. See HENKIN, supra note 7, at 47 (emphasis omitted). If there is any doubt regarding the veracity of the maxim, one need only ask what the world would look like today if the prohibidon regarding the use of force was not followed most of the thme.
85. Cf. SCHELLING, supra note 1, at 119 (suggesting that game theory can be more extensively used to analyze nonzero-sum games of strategy).
86. See, e.g., GOLDSMITH & POSNER, supra note 8, at 184 (arguing that states use moralistic and legalistic rhetoric merely to disguise purely self-interested motives).
87. Id. at 225 ("International law is a real phenomenon, but international law scholars exaggerate its power and significance.").
88. See, e.g., GLENNON, supra note 44;
89. Lobel & Ratner, supra note 50.
90. See, e.g., Hockett, supra note 25;
91. Norman & Trachtman, supra note 30, at 541-42.
92. DAVID GAUTHIER, MORALS BY AGREEMENT (1986).
93. Many moral philosophers have pursued similar themes, but without explicitly invoking game theory as a methodological tool.
94. See, e.g., THOMAS NAGEL, THE POSSIBILITY OF ALTRUISM (1970);
95. T. M. SCANLON, WHAT WE OWE TO EACH OTHER (1998).
96. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971) (describing and elaborating upon the conception of justice that is implicit in the contract tradition).
97. GAUTHIER, supra note 60, at 9 ("Morality does not emerge as the rabbit from the empty hat.... [I]t emerges quite simply from the application of the maximizing conception of rationality to certain structures of interaction. ");
98. see also Jody S. Kraus & Jules L. Coleman, Morality and the Theory of Rational Choice, in CONTRACTARIANISM AND RATIONAL CHOICE: ESSAYS ON DAVID GAUTHIER'S Morals By Agreement 254, 255 (Peter Vallentyne ed., 1991) (arguing that rationality cannot provide the substantive content of morality).
99. GAUTHIER, supra note 60, at 9 ("Reason overrides the presumption against morality.").
100. See id. at 10 (emphasizing that his theoretical focus is on why it is rational for individuals to agree to constraining principles ex ante as well as to comply with such agreed constraints ex post).
101. This is one way of understanding Hobbes's theory: collective rationality and mutual benefit demands a social contract, but individuals might prefer free riding, thus requiring the Leviathan to enforce individual compliance. For further discussion of the relationship of collective rationality to the social contract in Hobbes's theory
102. see PHILIP PETTIT, MADE WITH WORDS: HOBBES ON LANGUAGE, MIND, AND POLITICS (2008).
103. See generally DAVID P. GAUTHIER, THE LOGIC OF LEVIATHAN: THE MORAL AND POLITICAL THEORY OF THOMAS HOBBES (1969) (describing, expanding, and critically reflecting upon Hobbes's moral and political theory).
104. For more recent projects pursuing the same line, see generally KEN BINMORE, GAME THEORY AND THE SOCIAL CONTRACT II: JUST PLAYING (1998) (using game theory to discuss morality and social reform).
105. GAUTHIER, supra note 60, at v ("The present enquiry began... when, fumbling for words in which to express the peculiar relationship between morality and advantage, I was shown the Prisoner's Dilemma.").
106. Id. at 177 (arguing that cooperation and constraint by all would "yield nearly optimal and fair outcomes").
107. Id. at 14-15.
108. Id. at 15.
109. Id. at 175-76.
110. See PET-TIT, supra note 66, at 108 ("Hobbes's picture is that as [people] each contract to create a commonwealth, people know that should they later defect, then the sovereign, drawing on the strength of the rest, will be there to punish them.").
111. The value of reputational gains and the costs associated with reputational losses will depend on the degree to which reputation is carried over from one legal context to another.
112. See, e.g., GUZMAN, supra note 28, at 100-11 (discussing the compartmentalizing of reputation);
113. George W. Downs & Michael A. Jones, Reputation, Compliance, and International Law, 31 J. LEGAL STUD. S95 (2002) (oudining empirical and theoretical reasons for believing that the actual effects of reputation are both weaker and more complicated man the standard view of reputation suggests);
114. see also Edward T. Swaine, Rational Custom, 52 DUKE LJ. 559, 618 (2002) (noting that "states do not, in fact, interact solely with respect to one rule or the other, and it is also possible to understand their interaction with respect both to an individual rule and to the system of customary international law").
115. GAUTHIER, supra note 60, at 176-77.
116. Id. at 176.
117. See id. at 174-75.
118. Gauthier himself published work regarding Hobbes's theory of international relations.
119. See, e.g., GAUTHIER, supra note 66, at 207-12 (discussing Hobbes's views on the state of nations, and observing that the development of nuclear weapons is "bringing the state of nations nearer to the true Hobbesian state of nature");
120. see also David Gauthier, Deterrence, Maximization, and Rationality, in THE SECURITY GAMBLE: DETERRENCE DILEMMAS IN THE NUCLEAR AGE 100, 107 (Douglas MacLean ed., 1984) (drawing on Hobbes's theories of nature to defend the rationality of deterrent policies).
121. See, e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 70 (1995) (discussing South Africa's status as an international pariah in the 1960s).
122. For a similar argument, see Peter J. Spiro, A Negative Proof of International Law, 34 GA. J. INT'L & COMP. L. 445, 447 (2006).
123. Cf. GLENNON, supra note 44, at 60-64 (discussing desuetude).
124. See also CHARLES R. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 47-49 (1979) (noting that, in the face of considerable empirical evidence to the contrary, people continue to suggest that international relations resembles a Hobbesian state of nature).
125. See, e.g., CHAYES & CHAYES, supra note 79, at 22-28 (proposing different methods of ensuring compliance);
126. see also DAVID CORTRIGHT & GEORGE A. LOPEZ, THE SANCTIONS DECADE: ASSESSING UN STRATEGIES IN THE 1990s (2000) (analyzing the effectiveness of twelve cases of UN sanctions).
127. See ERIC A. POSNER, LAW AND SOCIAL NORMS (2000).
128. Id. at 187 (asserting that people rationally use the rhetoric of principle "in order to obtain strategic advantages in their interactions with others").
129. Posner cashes out the idea of an absolute principle as a claim regarding incommensurability.
130. See id. at 192-98. In other words, if someone says that no amount of money will convince them to give up a much-needed vacation with his or her family, that person is implicitly saying that the value of money and the value of time with his or her family are incommensurable and cannot be compared. If they could be compared, according to Posner, there would be a price at which the amount of money would outweigh the value of the dme widi the family.
131. Id. at 193-94. Posner concludes that incommensurability claims signal to others that one will not cheat.
132. Id. at 197.
133. Id. at 195-97.
134. Id. at 190 (asserdng, as an example, that "a rational person will sacrifice his reputation when the gains are sufficiendy high").
135. Id. at 197.
136. Id. at 195.
137. Id. at 197-98.
138. Id. at 197.
139. See, e.g., GOLDSMITH & POSNER, supra note 8, at 167-84 (discussing their "theory of international rhetoric").
140. Id. at 185.
141. Id. at 169 ("[S]tates provide legal or moral justifications for their actions, no matter how transparendy self-interested their actions are.").
142. Id. at 172.
143. Cf. id. at 178-79 (discussing how leaders will address their speech to foreign leaders but intend their talk for domestic audiences).
144. id, at 185.
145. See GAUTHIER, supra note 60, at 182-84.
146. See, e.g., David Gauthier, Commitment and Choice: An Essay on the Rationality of Plans, in ETHICS, RATIONALITY, AND ECONOMIC BEHAVIOUR 217, 217-19 (Francesco Farina et al. eds., 1996) [hereinafter Gauthier, Commitment and Choice] (arguing that plans serve as a rational guide for subsequent actions);
147. see also David Gauthier, Intention and Deliberation, in MODEUNG RATIONALITY, MORALITY, AND EVOLUTION 41, 53 (Peter A. Danielson ed., 1998) (discussing why an agent would rationally deliberate about plans).
148. See Gauthier, Commitment and Choice, supra note 100, at 219 (discussing how agents who adopt a plan restrict subsequent deliberation for actions that are compatible with that plan).
149. Id. at 219-21 (describing conditions for rational reconsideration).
150. See generally MICHAEL E. BRATMAN, INTENTION, PLANS, AND PRACTICAL REASON (1987) (providing a more elaborate discussion on the role of plans in understanding the relationship between rationality and action).
151. Id. at 64-65 (discussing plan stability in order to explain the rationality of an agent's reconsideration or non-reconsideration of a plan);
152. see also Gauthier, Commitment and Choice, supra note 100, at 221 ("[A] full appreciation of the role that plans play in deliberation requires revisions in the orthodox view of economic rationality.").
153. BRATMAN, supra note 103, at 2-3.
154. Compare Gauthier, Commitment and Choice, supra note 100, at 221-22 ("[F]rom the standpoint of the economist... [a]n agent's reasons for an action are adequate just in case he prefers the expected outcome of that action no less than the expected outcome of any of its alternatives. The expected outcome of an action is the probability-weighted sum of the possible outcomes of the action. ")
155. with GAUTHIER, supra note 60, at 184-85.
156. Gauthier, Commitment and Choice, supra note 100, at 222.
157. See id. at 222-23 (discussing how the thesis that human beings are maximizing individuals can be applied to rational planning).
158. For further discussion, see generally EDWARD F. MCCLENNEN, RATIONALITY AND DYNAMIC CHOICE: FOUNDATIONAL EXPLORATIONS (1990) (analyzing how to normatively justify principles of rationality).
159. Gauthier, Commitment and Choice, supra note 100, at 228 (challenging the view that "direcdy maximizing considerations are to be brought to bear on each particular choice"). Simply put, commitment to a plan "makes planning maximally efficacious in co-ordinating one's own actions... with those of others, so that one may best realize one's objectives."
160. Id.
161. See id. at 242-43.
162. See Michael E. Bratman, Following Through with One's Plans: Reply to David Gauthier, in MODELING RATIONALITY, MORALITY, AND EVOLUTION, supra note 100, at 55 (arguing that rational deliberation and plan stability are linked by the concept of planning). Along with Gauthier, Bratman believes that deliberation about future actions "is justified by appeal to its expected long-run impacts."
163. See id. at 59. Bratman concludes that reconsideration of a plan is rationally justified if the agent believes that a specific alternative will better achieve "the very same long-standing, stable and coherent desires and values."
164. Id. at 61;
165. see also Michael E. Bratman, Planning and Temptation, in MIND AND MORALS: ESSAYS ON COGNITIVE SCIENCE AND ETHICS 293, 294 (Larry May et al. eds., 1996) (suggesting that coordination is impossible without stable intentions and plans).
166. For a discussion of myopic choosers, see Edward F. McClennen, Rationality and Rules, in MODELING RATIONALITY, MORALITY, AND EVOLUTION, supra note 100, at 16.
167. A formal model was first offered by R. H. Strotz in Myopia and Inconsistency in Dynamic Utility Maximization, 23 REV. ECON. STUD. 165, 173 (1955).
168. Claire Finkelstein developed a version of this view in her essay, Acting on an Intention, in REASONS AND INTENTIONS 67, 83 (Bruno Verbeek ed., 2008).
169. See, e.g., J. J. C. Smart, Extreme and Restricted Utilitarianism, in ETHICAL THEORY 286, 286-88 (James Rachels ed., 1998).
170. id. at 286-87.
171. Id. at 287.
172. See, e.g., GUZMAN, supra note 28, at 15-22.
173. Cf. GOLDSMITH & POSNER, supra note 8, at 7-10 (addressing the methodology of rational choice theory, but mostly addressing constructivist challenges).
174. See JOHN RAWLS, POLITICAL LIBERALISM 52 (expanded ed. 1996) ("Justice as fairness.... does not try to derive the reasonable from the rational.").
175. Compare RAWLS, supra note 62, at 16 (noting that contract terminology conveys the idea that principles of justice are principles that would be chosen by rational persons and that "[t]he theory of justice is a part, perhaps the most significant part, of the theory of rational choice")
176. with John C. Harsanyi, Morality and the Theory of Rational Behaviour, in UTILITARIANISM AND BEYOND 39, 39 (Amartya Sen & Bernard Williams eds., 1982) (noting that his ethical theory, while based on intellectual traditions in moral philosophy, makes essential use of the modern Bayesian theory of rational behavior).
177. See, e.g., ALAN GEWIRTH, REASON AND MORALITY (1978).
178. See JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 29 (Erin Kelly ed., 2001).
179. por a discussion of the structure of the naturalistic problem regarding rationality, see Ronald de Sousa, Modeling Rationality: A Normative or Descriptive Task?, in MODELING RATIONALITY, MORALITY, AND EVOLUTION, supra note 100, at 120 (defining normativism as the claim that "within all attempts to model actual reasoning processes there must be an ineliminable element of normativity").
180. See Christine M. Korsgaard, Personal Identity and the Unity of Agency: A Kantian Response to Parfit, 18 PHIL. & PUB. AFF. 101, 109-15 (1989) (discussing how rational, unified agents make life plans).
181. See ISAAC LEVI, THE COVENANT OF REASON: RATIONALITY AND THE COMMITMENTS OF THOUGHT 1-19 (1997).
182. This view is arguably implicit in JOHN RAWLS, THE LAW OF PEOPLES: WITH "THE IDEA OF PUBLIC REASON REVISITED" 32 (2001).
183. See also HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 154 (1952) (discussing the relationship of a state to the international community).
184. See also Philip Pettit, Collective Persons and Powers, 8 LEGAL THEORY 443 (2002) (discussing the organization of certain collectives).
185. For more on the irrelevancy of this distinction for purposes of the commitment to rationality, see CAROL ROVANE, THE BOUNDS OF AGENCY: AN ESSAY IN REVISIONARY METAPHYSICS 132 (1998).
186. Cf. Carol Rovane, What Is an Agent?, 140 SYNTHESE 181 (2004) (discussing group agents).
187. See ISAAC LEVI, HARD CHOICES: DECISION MAKING UNDER UNRESOLVED CONFLICT 151 (1986) ("[E]ven students of market economies attribute beliefs, desires, goals, values and choices to families, firms and, of course, government agencies....").
188. See generally Franck, supra note 26 (discussing international law in an age of disparities of power).
189. See supra notes 21-22 and accompanying text.
190. See, e.g., GOLDSMITH & POSNER, supra note 8, at 116 (discussing how weaker states can be coerced into compliance by more powerful states).
191. For a discussion of this problem, see BEITZ, supra note 82, at 41-44, 47-48.
192. For a general discussion of how underlying geopolitical realities can preclude establishing effective rules of international law, see GLENNON, supra note 44.
193. See, e.g., GOLDSMITH & POSNER, supra note 8, at 66-75 (discussing patterns of state compliance-and lack diereof-with regards to the customary international law exempting fishing vessels from right of capture during times of war);
194. id. at 116-17 (discussing strategic coercion, "often in violation of international law" by stronger states to make weaker states comply with human rights norms when such compliance is in the interest of the stronger states).
195. Id. at 90 ("[W]e have explained the logic of treaties without reference to notions of 'legality' or pacta sunt servanda or related concepts. As was the case with customary international law, the cooperation and coordination models explain the behaviors associated with treaties without reliance on these factors, or on what international lawyers sometimes call 'normative pull.'").
196. See, e.g., Brett Frischmann, A Dynamic Institutional Theory of International Law, 51 BUFF. L. REV. 679, 681 (2003) ("Despite the significant advancements made in the study of international cooperation, there remains a gap between the types of institutions that traditional game theory predicts should exist and the types of institutions found in reality.");
197. Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L L. 171 (2003) (analyzing a study that aims to quantify the effect of human rights treaty ratification on human rights violations);
198. Michael P. Scharf, International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate, 31 CARDOZO L. REV. 45 (2009) (using qualitative empirical data to assess the influence of international law on the formation of U. S. foreign policy in times of crisis).
199. See GOLDSMITH & POSNER, supra note 8, at 186.
200. Id. at 187-88.
201. Id. at 188
202. (citing CHRISTOPHER KUTZ, COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE 253 (2000)).
203. See 2 JOHN LOCKE, TWO TREATISES OF GOVERNMENT §§ 119-22, at 347-49 (Peter Laslett ed., rev. ed. 1988) (1690).
204. See GOLDSMITH & POSNER, supra note 8, at 189.
205. See id. at 187-88.
206. See id. at 190-91.
207. See id. at 189.
208. Id. at 191.
209. Id.
210. The conclusion that the autonomy of states (and nations) has no intrinsic value can and should be resisted, though a full account is impossible here.
211. See, e.g., CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY (1989) (presenting a history of the modern identity);
212. see also WILL KYMUCKA, STATES, NATIONS AND CULTURES (1997) (arguing that group rights are derived from enlightenment commitment to individual flourishing);
213. Allen Buchanan, Democracy and the Commitment to International Law, 34 GA. J. INT'L & COMP. L. 305, 320 (2006) (discussing how those who embrace a cosmopolitan moral perspective should regard international law);
214. Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439, 443 (1990) (discussing the moral justifications for national self-determination).
215. See KVMUCKA, supra note 149, at 35.
216. For a full defense of the value of collectivities, see GEORGE P. FLETCHER & JENS DAVID OHUN, DEFENDING HUMANITY: WHEN FORCE IS JUSTIFIED AND WHY (2008).
217. See id. at 136-47.
218. See FRIEDRICH KARL VON SAVIGNY, SYSTEM DES HEUTIGEN ROMISCHEN RECHTS, BAND 2, 236 (1840) (asserting that juridical persons are fictitious but are nevertheless entided to rights by extension).
219. Cf. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007) (discussing the author's experiences as head of the Office of Legal Counsel of the U. S. Department of Justice from 2003 to 2004).