Can International Law Work? A Constructivist Expansion

UGA Legal Studies Research Paper No. 09-007; Berkeley Journal of International Law (BJIL) (forthcoming)


An increasing number of scholars have begun to apply rational choice methodologies to the study of international law. Earlier rational choice scholarship voicing skepticism about international law’s true force has since been followed by sophisticated rational choice defenses of international law. This review essay focuses on Andrew Guzman’s recent book HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008), one of the best of those defenses. In that book, Guzman develops an elegant and sophisticated account of 'reputation' and the role it can play in encouraging rational compliance with international law. Based on this account, Guzman makes a powerful case that rational choice theory does support international law’s claims of legal force and can explain how international law works. This essay lays out some of the book’s key contributions to international law scholarship. But this essay also argues that in developing his account of 'reputation,' Guzman has demonstrated the inadequacy of rational choice descriptions of how international law works. This essay lays out three specific critiques of Guzman’s rational choice account: (1) that the account has trouble explaining international practice in areas like human rights, (2) that the account takes too narrow a view of the ways international law 'works,' and (3) that rational choice may be insufficient to explain the force of reputation or to create testable hypotheses of state action. This essay concludes by using Guzman’s account of reputation to suggest a more expansive account of how international law works integrating elements of rational choice, constructivist, and liberal theories.