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November 01, 2009


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Patrick S. O'Donnell

If one wants to learn about Eric Posner's views about international law, one should, in addition to his latest book, read his earlier work co-authored with Jack Goldsmith, The Limits of International Law (2005). After that, read a work that is far more historically sensitive and empirically accurate, conceptually coherent and lucid, and methodologically sound and availing, than either Posner volume, namely, Mary Ellen O'Connell's The Power and Purpose of International Law (2008). O'Connell rightly references a remarkable review essay of the Goldsmith/Posner book by Robert Hockett that is heads above the many other reviews of their book (reviews that, while critical, were strangely deferential and timid, owing in part, perhaps, to the reviewers' apparent lack of familiarity with rational choice theory). Hockett's devastatingly on-target analysis, "The Limits of Their World," 90 Minnesota Law Review (2006): 1720-1790, is available here:,%20Robert%2090%20Minn.%20L.%20Rev.%201720%202006.pdf

A bracing antidote to a Posnerian or Posnerian-like approach to questions of international law that does not hide normative assumptions and claims behind pseudo-social scientific and descriptive pretense, is Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004). Buchanan, along with David Golove, earlier dealt with time-worn Realists, Moral Minimalists of little backbone and, yes, Legal Nihilists (and by implication, Simple-Minded Positivists), in their essential essay, "Philosophy of International Law," in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (2002): 868-934.

Posner should rather be debating the likes of Buchanan, O'Connell or Hockett.

Patrick S. O'Donnell

As an addendum to the above comment: Law students relatively new to international law and wanting to explore this subject in more depth, should find my bibliographies useful:

Patrick S. O'Donnell

One last comment: I'm not, in principle, against the use of rational choice theory, especially insofar as it takes account of critiques by the likes Shapiro or Sen. And in international law a step in the right direction is represented by Andrew T. Guzman's How International Law Works: A Rational Choice Theory (2008):

Kim Krawiec

Thanks, Patrick. This is all very informative, as always. Kim

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