Section I Theoretical Background
Chapter 2: Understanding States
I. Rationalism in Context
At the centre of traditional economic methodology, including in its application to domestic law, the approach taken is that individuals make decisions in order to maximise their utility.109 This assumption, termed homoeconomicus,110 can be applied to any area of social interaction, and fits as much for the simple purchasing of an apple over an orange as it does for moving from one football club to another. As prices or wages increase, we assume individual preferences change. The interaction between legal and economic theory is well explained through the conduit that if we follow legal positivism’s assumption that law is an obligation backed by a sanction, we learn that
economics provide[s] a scientific theory to predict the effects of legal sanctions on behaviour. To economists, sanctions look like prices, and
Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1st edn, Cambridge University Press 1991); Anne-Marie Slaughter and William Burke-White, ‘The Future of International Law is Domestic (or, The European Way of Law)’, [2006] 47 Harvard International Law Journal 327; Tomas Risse-Kappen, Stephen C Ropp, Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (1st edn, Cambridge University Press 1999).
109 See generally William Coleman, Rationalism and Anti-Rationalism in the Origins of Economics: The Philosophical Roots of 18th Century Economic Thought (1st edn, Edward Elgar 1995).
110 This assumption has been subject to considerable attention in recent times, with scholars suggesting that it can be reassessed to take account of behavioural issues, see Tanina Rostain,
‘Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement’, [2000] 34(4) Law & Society Review 973; Elizabeth Anderson, ‘Beyond Homo Economicus: New Developments in Theories of Social Norms’, [2000] 29(2) Philosophy & Public Affairs 170; Russell Korbkin and Thomas Ulen, ‘Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics' [2000] 88(4) California Law Review 1051.
presumably, people respond to these sanctions much as they respond to prices.111
In translating this onto the international setting, we use rationalism to attempt to predict how states will respond to various legal approaches to the protection of human rights. Such an application to the investigation of legal problems has, however, never been without its critics.112 Traditional arguments might be that laws are followed out of a feeling of moral duty, rather than because of an increase in the costs of breaking that law.113 Furthermore, whereas rationalism is traditionally applied to individuals, its application to international law is open to greater criticism.114 Despite that, it is by no means a new approach, as other authors have previously contended that international law ‘emerges from states acting rationally to maximise their interest, given their perceptions of the interest of other states and the distribution of state power’.115 In combining rationalism and international law, it has been suggested that
even if we were to assume that self-interest is the central motivating force for states, we can test whether international law has an independent causal effect on behaviour by, for example, examining cases where self-interest predicts one behaviour and law-abiding behaviour predicts another.116 Other scholars have attempted such analysis by utilising, among other approaches, quantitative analyses to examine whether ratification of treaties results in improved human rights standards in ratifying states. We would expect rational states to ratify treaties to which they can adhere and not to ratify treaties that require genuine change on the domestic level. States are assumed to rationally calculate the costs and benefits that stem from ratification and make a
111 Cooter and Ulen, Law and Economics (n 57), 3.
112 See, for an overview of the perspective of critical legal studies, Duncan Kennedy, ‘Law and Economics from the Perspective of Critical Legal Studies’ in Peter Newman (ed), The New Palgrave Dictionary of Economics and the Law: Volume 2, (1st edn, Palgrave Macmillan 1998).
113 David Bear, ‘Establishing a Moral Duty to Obey the Law Through a Jurisprudence of Law and Economics’ [2007] 34 Florida State University Law Review 491.
114 A good discussion is provided in Jack L Goldsmith and Eric A Posner, ‘The New International Law Scholarship’, 2006 University of Chicago, Public Law Working Paper No. 126 (May 2006).
115 Jack L Goldsmith and Eric A Posner, The Limits of International Law (1st edn, Oxford University Press 2005), 3.
116 Oona A Hathaway, ‘Book Review: Rationalism and Revisionism in International Law’ [2006] 119 Harvard Law Review 1404, 1442.
ratification decision accordingly, with this approach resting upon the concept of international law as a way in which states are regulated so that externalities are internalized.117 Such a perspective may be reasonably criticised for being simplistic, for failing to take account of other motivations for ratifying treaties, and for putting too much emphasis on a concept (rationalism) that is difficult to measure and somewhat intangible in relation to states. Establishing the presence of rationalism when examining the decisions of individuals is problematic because of the difficulties individuals face in assessing the likely future payoffs of a particular course of actions, as distinct from more immediate payoffs; this hindrance has been termed ‘bounded rationality’.118 These cognitive restrictions inhibit individuals from accounting for all likely contingencies and restrict the usefulness – and pragmatism119 – of rationalism in its application to individuals.
The decision to purchase an apple over an orange is only truly rational if an individual’s preference for apples remains constant in future periods. The individual’s inability to calculate how his/her future preferences will appear frustrates the genuine rationality of his/her decision to purchase the apple.
Individuals, as emotionally charged beings, are unlikely to be capable of delineating between their possible future preferences and their definite immediate needs. To do so would require an unreachable level of cognitive processing. Applying rationalism to individuals may therefore seem unrealistic.
But while these issues are evidently significant hurdles in the latter case, they form an even greater burden when one attempts to apply rationalism to states. In this case, the application involves assuming that an entity comprising innumerable separate individuals can have clear preferences and is capable of calculating the likely outcomes of acting out those preferences. In addition, even if it is possible for states to be rational in this way, by making this assumption we also allude to potential state short-termism. The threat of electoral defeat,120 or the
117 Trachtman, The Economic Structure of International Law (n 2), 11.
118 Herbert A Simon, ‘Theories of Bounded Rationality’ in CB McGuire and Roy Radner (eds), Decision and Organization: A Volume in Honor of Jacob Marschak (1st edn, North-Holland 1972);
Herbert A Simon, Models of Bounded Rationality, Vol. 3: Empirically Grounded Economic Reason (MIT Press 1997).
119 Reinhard Selten, ‘What is Bounded Rationality?’ in Gerd Gigerenzer and Reinhard Selten (eds), Bounded Rationality: The Adaptive Toolbox (MIT Press 2002), 16.
120 See, generally, Alessandro Bonfiglioli and Gino Gancia, ‘Uncertainty, Electoral Incentives and Political Myopia’ [2013] 123(568) The Economic Journal 373.
need to appease external donors121 are just two examples of immediate issues that may affect a state’s preference in the short term, such that it chooses to ratify a particular treaty. If the state were to take long-term issues into account, perhaps an alternative policy may have been chosen. The state’s inability to account for its future preferences is set aside when one applies rationalist assumptions. Its bounded rationality, possibly influenced by the realities of politics and international relations, entail that it might pursue policies that are harmful in the long term.
By applying rationalism to state decisions, this dissertation brings with it the intellectual baggage associated with all applications of rationalism in social scientific analysis. To that end, we simplify our analysis significantly, and assume that states are capable of consciously assessing the consequences of their actions and pursuing the policies that best result in overall gains. In doing so, immediate issues may influence them to a greater extent than less tangible issues.
In applying these assumptions to states it is necessary to frame them within the context of the established IR theories. Accordingly, we are concerned with investigating how power, domestic contexts, non-state actors, and institutions all influence the decision of states to ratify treaties and to comply with treaty bodies.
This is done so as to make links between the various IR theories and to assist the contextualising of rational choice arguments within those established theories.