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The Limits of International Law
International law is much debated and discussed, but poorly understood. Does international law matter, or do states regularly violate it with impunity? If international law is of no importance, then why do states devote so much energy to negotiating treaties and providing legal defenses for their actions? In turn, if international law does matter, why does it reflect the interests of powerful states, why does it change so often, and why are violations of international law usually not punished?
In this book, Jack Goldsmith and Eric Posner argue that international law matters but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. It follows that many global problems are simply unsolvable.
The book has important implications for debates about the role of international law in the foreign policy of the United States and other nations. The authors see international law as an instrument for advancing national policy, but one that is precarious and delicate, constantly changing in unpredictable ways based on non-legal changes in international politics. They believe that efforts to replace international politics with international law rest on unjustified optimism about international law's past accomplishments and present capacities.
In this book, Jack Goldsmith and Eric Posner argue that international law matters but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. It follows that many global problems are simply unsolvable.
The book has important implications for debates about the role of international law in the foreign policy of the United States and other nations. The authors see international law as an instrument for advancing national policy, but one that is precarious and delicate, constantly changing in unpredictable ways based on non-legal changes in international politics. They believe that efforts to replace international politics with international law rest on unjustified optimism about international law's past accomplishments and present capacities.
262 pages, Paperback
First published January 1, 2005
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139 people want to read
About the author
Jack L. Goldsmith
31 books32 followersJack Landman Goldsmith III (born September 26, 1962) is a Harvard Law School professor who has written extensively in the field of international law, civil procedure, cyber law, and national security law. He has been "widely considered one of the brightest stars in the conservative legal firmament."
Goldsmith was born in 1962 in Memphis, Tennessee. His stepfather, Charles "Chuckie" O'Brien, is widely believed to have played a role in the disappearance of Jimmy Hoffa.[6] Goldsmith graduated from Pine Crest School in 1980.
He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as an United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).
Goldsmith graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours, from Oxford University, in 1986, a J.D. from Yale Law School, in 1989, an M.A. from Oxford (which is not a separate degree, but an upgrading of the BA), in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.
He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions which were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
Goldsmith was born in 1962 in Memphis, Tennessee. His stepfather, Charles "Chuckie" O'Brien, is widely believed to have played a role in the disappearance of Jimmy Hoffa.[6] Goldsmith graduated from Pine Crest School in 1980.
He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as an United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).
Goldsmith graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours, from Oxford University, in 1986, a J.D. from Yale Law School, in 1989, an M.A. from Oxford (which is not a separate degree, but an upgrading of the BA), in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.
He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.
In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions which were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.
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Displaying 1 - 6 of 6 reviews
April 23, 2024
This is fantastic! The haters on here are ignorant.
It’s a very conceptually simple, but powerful broadly “realist” view of what international law is, and what you can expect from it. Basically, you can expect to solve multilateral coordination problems, and bilateral cooperation problems, but not a ton else. They admit that it’s a bit of a puzzle that so many people and governments talk like it is more than that, but they say this can largely be explained by an equilibrium of cheap talk where deviation would be a very bad signal (we all say we’re super hard workers in interviews; being the one person who didn’t say that would look really bad). There’s more than that in the basic sweep, but that’s the core of what I took away.
There’s also a great bit of reflection on whether we should morally want international law to be more than it is. They pretty convincingly argue that we shouldn’t. International law is made by states, and states have a whole lot of obvious moral blind spots. Why should we morally expect a lot by a system made by and for states?
There is much else in the book. It’s full of wise nuggets and is worth reading both for law and IR people.
It’s a very conceptually simple, but powerful broadly “realist” view of what international law is, and what you can expect from it. Basically, you can expect to solve multilateral coordination problems, and bilateral cooperation problems, but not a ton else. They admit that it’s a bit of a puzzle that so many people and governments talk like it is more than that, but they say this can largely be explained by an equilibrium of cheap talk where deviation would be a very bad signal (we all say we’re super hard workers in interviews; being the one person who didn’t say that would look really bad). There’s more than that in the basic sweep, but that’s the core of what I took away.
There’s also a great bit of reflection on whether we should morally want international law to be more than it is. They pretty convincingly argue that we shouldn’t. International law is made by states, and states have a whole lot of obvious moral blind spots. Why should we morally expect a lot by a system made by and for states?
There is much else in the book. It’s full of wise nuggets and is worth reading both for law and IR people.
May 9, 2023
Solid counterpoint to my International Law class. Though I am still more IL-friendly than I expected to be.
December 5, 2023
Finally getting around to posting this review, years after writing it. Now having considerably more first-hand experience with international law, I’d be curious to see if I feel the same way:
___
Not worth the time.
The authors argue that international law represents little more than an amalgamation of states pursuing their own self-interest on the international stage. “International law is… endogenous to state interests.” With this view, they seem to disregard the legal legitimacy of international entities and individual people alike and seem to use that view to deny much of modern international law’s legitimacy. Instead they simplify its complexity and argue that, as the core units of international relations, states are the end-all arbiters of international law.
Within their argument, the authors seem to think the maximum legitimate collective of humans ends at the nation-state. In effect, they claim that as the maximum collective of humans (my term) there lies a collective morality or interest that possesses some legitimacy - if only because the nation-state can back up its interests with some version of force. How those collective interests come to be recognized and acted upon and the fact that international institutions are also made up of a collective of humans (and could therefore fall within that category of legitimate institutions) seems not to be taken quite as seriously. Furthermore, why the authors opt to tie their view of the world so heartily into the nation-state and not a smaller or larger institution - say, the provincial governments within a nation-state or with the city or even the individual human being - isn’t covered in this book. I venture to guess that the reason for this lies within their very argument: the interests of the nation-state (in particular the United States - for whom the authors served as decision-makers).
Though exceptions were alluded to, the authors attempt to explain the world in a manner that is troubling. For instance, claiming that almost all international law interactions fall into 4 realms (again centered at the nation-state):
1- Coincidence - Multiple state’s interests align for individually differing reasons
2- Coordination - Mutual maintenance of a status quo
3- Cooperation - Mutual sacrifice on both ends for mutually-beneficial interests
4- Coercion - Attempt at overpowering for individual interests
Again, the beginning and entirely essential assumption of this simplification is the centrality of the nation-state in the decision-making process. The authors go back to centuries-old examples to prove that historically half-true and oversimplified view; very few examples post-WWI (so no modern international corporations, international banking institutions, UN, EU, etc.) are used. The existence of international institutions that hold sway over the choices of those states is very likely to change the outcomes; whether that change in outcome is in line with the interests of the individual states would, to me, make a much more interesting book with long-term usefulness. Alas, that was not “Limits of International Law.”
This centrality of the nation-state seems to be a relatively beneficial point of view for one privileged enough to be affiliated with the United States government in ~2005 because the USA can disproportionately influence the world. Sadly, it disenfranchises billions of people, states, and entities who are not so privileged. Embedded within the argument is a feature that permits US foreign policy (or any state) to essentially overrule international law simply because ‘might makes right.’
In short, this book is a direct link to decades of the United States’ thin claims of legality of actions in international relations and I’m disappointed (though not at all surprised) by the self-interested short-sightedness of its arguments. It brushes away international law as a and, personally, I wouldn’t recommend it except to better understand the rationalizing of that king-of-the-hill point of view. A recent book that I’ve read that could tie in well with concepts in this one is THE GLOBALIZATION PARADOX - which is a book I would recommend.
My one takeaway quote:
“International law emerges from states’ pursuit of self-interested policies on the international stage. International law is, in this sense, endogenous to state interests. It is not a check on state self-interest; it is a product of state self-interest… under our theory, international law does not pull states toward compliance contrary to their interests, and the possibilities for what international law can achieve are limited by the configurations of state interests and the distribution of state power.”
___
Not worth the time.
The authors argue that international law represents little more than an amalgamation of states pursuing their own self-interest on the international stage. “International law is… endogenous to state interests.” With this view, they seem to disregard the legal legitimacy of international entities and individual people alike and seem to use that view to deny much of modern international law’s legitimacy. Instead they simplify its complexity and argue that, as the core units of international relations, states are the end-all arbiters of international law.
Within their argument, the authors seem to think the maximum legitimate collective of humans ends at the nation-state. In effect, they claim that as the maximum collective of humans (my term) there lies a collective morality or interest that possesses some legitimacy - if only because the nation-state can back up its interests with some version of force. How those collective interests come to be recognized and acted upon and the fact that international institutions are also made up of a collective of humans (and could therefore fall within that category of legitimate institutions) seems not to be taken quite as seriously. Furthermore, why the authors opt to tie their view of the world so heartily into the nation-state and not a smaller or larger institution - say, the provincial governments within a nation-state or with the city or even the individual human being - isn’t covered in this book. I venture to guess that the reason for this lies within their very argument: the interests of the nation-state (in particular the United States - for whom the authors served as decision-makers).
Though exceptions were alluded to, the authors attempt to explain the world in a manner that is troubling. For instance, claiming that almost all international law interactions fall into 4 realms (again centered at the nation-state):
1- Coincidence - Multiple state’s interests align for individually differing reasons
2- Coordination - Mutual maintenance of a status quo
3- Cooperation - Mutual sacrifice on both ends for mutually-beneficial interests
4- Coercion - Attempt at overpowering for individual interests
Again, the beginning and entirely essential assumption of this simplification is the centrality of the nation-state in the decision-making process. The authors go back to centuries-old examples to prove that historically half-true and oversimplified view; very few examples post-WWI (so no modern international corporations, international banking institutions, UN, EU, etc.) are used. The existence of international institutions that hold sway over the choices of those states is very likely to change the outcomes; whether that change in outcome is in line with the interests of the individual states would, to me, make a much more interesting book with long-term usefulness. Alas, that was not “Limits of International Law.”
This centrality of the nation-state seems to be a relatively beneficial point of view for one privileged enough to be affiliated with the United States government in ~2005 because the USA can disproportionately influence the world. Sadly, it disenfranchises billions of people, states, and entities who are not so privileged. Embedded within the argument is a feature that permits US foreign policy (or any state) to essentially overrule international law simply because ‘might makes right.’
In short, this book is a direct link to decades of the United States’ thin claims of legality of actions in international relations and I’m disappointed (though not at all surprised) by the self-interested short-sightedness of its arguments. It brushes away international law as a and, personally, I wouldn’t recommend it except to better understand the rationalizing of that king-of-the-hill point of view. A recent book that I’ve read that could tie in well with concepts in this one is THE GLOBALIZATION PARADOX - which is a book I would recommend.
My one takeaway quote:
“International law emerges from states’ pursuit of self-interested policies on the international stage. International law is, in this sense, endogenous to state interests. It is not a check on state self-interest; it is a product of state self-interest… under our theory, international law does not pull states toward compliance contrary to their interests, and the possibilities for what international law can achieve are limited by the configurations of state interests and the distribution of state power.”
December 21, 2024
Reviewing old books from notes on my old hard-drive.
Goldsmith and Posner conclude that international law is not independent from state actions, so it should not be considered law. However, domestic law is not independent from individuals’ actions. Preferences of the people is reflected in the election process, so it is logical that countries then are able to represent the preferences of its people. Preferences of government officials is reflected in the uneven enforcement of legislation, so it is logical that countries uneven enforcement of international treaties is reflective of a legal system. A state’s preference can become a norm which can become custom and thus international law, and is that not the same as our domestic legal system?
Read for POL 438
Goldsmith and Posner conclude that international law is not independent from state actions, so it should not be considered law. However, domestic law is not independent from individuals’ actions. Preferences of the people is reflected in the election process, so it is logical that countries then are able to represent the preferences of its people. Preferences of government officials is reflected in the uneven enforcement of legislation, so it is logical that countries uneven enforcement of international treaties is reflective of a legal system. A state’s preference can become a norm which can become custom and thus international law, and is that not the same as our domestic legal system?
Read for POL 438
October 3, 2008
expect that by understanding "the limits of international law" we'll be enlightened why the law is not working to solve some problem...and to accept that international law not as strong as expected....
bru beberapa issues yg dah gw baca...dan harusnya baca ini tanpa prior assumption to the issues supaya lebih bisa welcoming ideas nya goldsmith and posner
bru beberapa issues yg dah gw baca...dan harusnya baca ini tanpa prior assumption to the issues supaya lebih bisa welcoming ideas nya goldsmith and posner
December 13, 2009
Booooooooooooooo
Displaying 1 - 6 of 6 reviews