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Professor Posner's book interview ran here as cover feature on November 2, Amazon Giveaway allows you to run promotional giveaways in order to create buzz, reward your audience, and attract new followers and customers. Learn more about Amazon Giveaway. The Perils of Global Legalism. Set up a giveaway.

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The Perils of Global Legalism

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Amazon Restaurants Food delivery from local restaurants. ComiXology Thousands of Digital Comics. East Dane Designer Men's Fashion. Drawing on such examples as NATOOCOs invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitionsOCoand that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests.

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This guide shows how. The Legal Marketing Fastlane: Do you know where your next client is coming from? Can it be true that international law offers little or no assistance in response to global collective action problems? If he is right, and given that the kind of world government he has in mind is indeed implausible, then the efforts of policy-makers and diplomats should immediately be diverted from efforts to craft international legal responses to global collective action problems, and reallocated to more productive pursuits.

The implication of Posner's book: From one perspective, this book might be viewed as a welcome dissenting voice amid general calls for more international law, and it rightly rejects what are by now caricatures of the American and European idealists who believe that the world could be perfected if only we wrote and complied with the right laws. Indeed, international law is not a nirvana solution to all our global problems, but merely part of the toolbox of practical political efforts to improve our situation.

Posner has applied his considerable analytical talent to the question of when and how international law may be useful. He has no doubt provided a provocative and interesting book. The problem is that Posner is not content merely to show the flaws in the idealistic general argument for more international law. He goes on to make a general argument against more international law. I do not believe that it is possible to make a general argument either for or against more international law. More refined and context-specific analysis will be necessary to know whether more international law is or is not useful in particular contexts.

But there is little doubt that international law has been, and will be, useful to solve some global collective action problems. This utility is just as clear as the utility of contracts to solve some inter-firm collective action problems and the utility of social institutions to solve some village-level collective action problems, as shown by the Nobel economics laureates, Oliver Williamson and Elinor Ostrom, respectively. Posner describes American-style global legalists as overestimating the social value of international law, and therefore overestimating the reciprocal, retaliatory, or systemic costs of violation, with the effect that they overestimate the effectiveness of international law.

How does Posner know that the legalists have generally overestimated the value of international law? Neither he nor they has the necessary context-specific data. Instead of presenting context-specific data, Posner makes a general theoretical argument that multilateral international law has little value to solve collective action problems as contrasted with coordination problems, where there is by definition no reason to cheat , because it is generally ineffective to do so.

For Posner, European-style global legalists simply make unwarranted natural law-based presumptions requiring unmitigated compliance with international law, even where, all things considered, compliance is not beneficial to the acting state. More international law leads to more international institutions, which together lead to a transfer of loyalty and thus global government. Posner rightly rejects this millennial dialectic. And while we will not soon have global government of the kind Posner envisions, we need to know whether international law offers possible mechanisms to deal with practical, on the ground, global collective action problems.

For Posner, a certain scale of institutional infrastructure, and a transfer of loyalty to a world government, would be necessary before international law can be effective. In this way, Posner's views are aligned with the most romantic, pie-in-the-sky, idealists—the only difference is in Posner's pessimism that this romantic vision can be achieved. He sees the transfer of loyalty as necessary to the establishment of a world state, and he sees a world state as essential to the effectiveness of international law.

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Posner fixates on the state as the exclusive repository of authority and loyalty, and thus argues that it is necessary that there be a world state in order for international law to have strength at Unlike most international lawyers, his evaluation of existing international law and institutions, and his view of the future, do not identify or anticipate possible centres of authority, and the possibility of law or government, outside even if not in place of, the state.

For Posner, international law is generally epiphenomenal in connection with multi-state cooperation problems. As part of this fixation on the state, Posner argues that the biggest problem with global legalism is that it espouses law without government. For Posner, in order to have law, you need government in the form of the traditional institutions of the state, including fully empowered legislatures, judiciaries and executives, as well as a monopoly on the use of force.

The premise is debatable, and its extension to the international setting is dependent on a highly questionable, and unsupported, assimilation of the international setting to the domestic setting. That is, even if we accept that a certain type of institution is needed within the state to solve intra-state collective action problems, it cannot simply be assumed that precisely the same institutions are needed or appropriate to solve international collective action problems.

In order for this syllogism to be true, a fish would have to be the same as a human with respect to the relevant characteristic. But Posner offers no evidence that the international setting is the same as the state in the relevant characteristic that concerns him. Based on this faulty syllogism, Posner does not allow that collective action problems might be solved by a variety of institutional mechanisms short of a kind of global government modelled on a strong national government.


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He neglects the possibility of a Coasian choice between the firm and the market — between integration and contract — to solve collective action problems, but insists on integration as the only basis for resolution. He seems to entertain no possibility for nuance or for distinct institutions that may be appropriate for distinctly international collective action problems, or for the distinct international context. In fact, he seems to see no difference between the role of law in the international context as compared to the domestic context.

But while for Posner the dynamics of the international and domestic contexts are the same, there is for him a critical difference. The difference is that the domestic setting contains institutions that solve cooperation problems, while the international setting simply does not and will never do so. How can he know that what exists is not precisely what states wish to exist? This glib assertion is patently false: In domestic society, and in all other social contexts, the creation of institutions always depends on collective action, and always is intended to solve collective action problems.

Here, Posner makes the additional error of extrapolating from the domestic context to the international context without recognizing contextual and teleological differences. The result is the breathtaking assertion that international law, to be effective, requires the same supporting institutions that domestic law has. Furthermore, when Posner specifies that the type of institutions for enforcement of law found in the state are the only adequate ones, he assumes a very idealized and narrow set of institutions available in the state for enforcement of law.

A quick survey of comparative politics and comparative constitutionalism would confirm that state institutions are actually quite varied and malleable, and nuanced, even within the narrow category of advanced liberal states. And the literature of social norms, led by Robert Ellickson, shows how in domestic society rules can arise and be stable and effective without formal organizational support. Posner seems to consider that only organizations , of the type found in the state, are sufficient to support international law.

An institutional economist surveying the existing field of international law would find a rich variety of institutions, including organizations. The rich literature of international regime theory, pioneered by Robert Keohane, recognizes the critical role of informal institutions in international society. So, while it is true that law requires institutions, or more accurately that certain types of law will be more efficiently made and enforced with certain types of institutions, we cannot move from there to the proposition that the government organizational features found in the state — indeed in Posner's idealized state — exhaust the category of institutions that may be effective to support international law.

ejisytoqys.tk: The Perils of Global Legalism (): Eric A. Posner: Books

A social scientist examining international problems of cooperation would not take the top-down approach of asking whether there is a need for a global state that simply replicates the organizational features of the strong national state. Rather, a social scientist would take a bottom-up approach, examining each type of cooperation problem separately, in order to determine which institutional solutions would resolve strategic or transaction cost problems endemic to that problem. Only after examining the range of international problems, and their individual solutions, would a social scientist go on to examine the need for institutional or organizational responses and the potential synergies among the solutions.

In this way, we might say that the state, with its wide range of internal subsidiarity, as well as its capacity to enter into international legal arrangements, is only a first approximation of the level at which collective action problems might be addressed. Posner says that the organizational features that are missing at the international level are legislatures, enforcers and adjudicators. And a cursory examination of the broad international legal system will confirm that there is little that looks like the organizational features of a strong state.