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Rational Choice, Reputation and Human Rights Treaties
Michigan Law Review (2008)
  • Alex Geisinger
  • Michael Ashley Stein

Scholars have long considered the linked questions of whether and why states obey international law. Contemporary contributions to this inquiry include schools of thought that aver the bearing of transnational legal process on state socialization, the impact of acculturation on state behavior, the sway of a state's desire to be held in esteem by other international actors, and the influence of a given state's belief in the rule of law. Common to each of these approaches is the notion that external norms have some effect on state action.

A second group of scholars takes an atomistic, instrumentalist approach. Skeptical of normative pressure, they envision states as rational actors seeking to maximize stable and preexisting preferences. The most recent contribution to this approach is How International Law Works: A Rational Choice Theory by Andrew T. Guzman. The book is an ambitious attempt to generate "a comprehensive and coherent theory" - based on the assumption that states are rational, self-interested actors - that can explain how international law "works across its full spectrum" (pp. 8-9).

By endeavoring to comprehensively explain international law within a rational choice framework, Rational Choice makes a valuable contribution to the developing body of international law scholarship. Guzman's efforts to more fully describe the reputational aspects of international law within a rational choice framework are especially significant. It is relatively easy to understand how direct economic or material benefits (or detriments) can motivate states to enter into or comply with international agreements. However, the influence of more indistinct reputational forces on the behavior of states has been a fertile source of contention between various schools of thought in this field.

Guzman does an admirable job describing the nexus between a state's rational self-interest and concern over its reputation among other states. It is, however, the limited role played by reputation in the theory as a whole that raises serious concerns regarding the book's claim to comprehensiveness. The book's focus on cooperation and coordination as the exclusive bases for treaty formation relegates reputational forces to playing a role only in treaty compliance, not treaty formation. Yet the formation of a considerable component of international law comprised by human rights treaties cannot be explained solely through the game-theoretic lens of cooperation and coordination. Because cooperation and coordination games cannot account for the formation of human rights treaties - leaving us instead to consider the reputational force behind treaty creation - we are required to reconsider Rational Choice's claim that it is a comprehensive theory applicable "to all international agreements" (p. 121). If, as we suggest, reputation plays a role in treaty formation, a more robust theory of reputation is necessary for any rational-choice-based explanation of international law to succeed. We can project that some of the strengths and weaknesses revealed by our examination of human rights treaty formation and compliance carry over into other parts of Guzman's theory.

Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.

  • Norms,
  • Social Norms,
  • Rational choice,
  • Social Psychology,
  • Cognitive Psychology,
  • Expressive Law
Publication Date
April, 2008
Citation Information
Alex Geisinger and Michael Ashley Stein. "Rational Choice, Reputation and Human Rights Treaties" Michigan Law Review Vol. 106 Iss. 6 (2008)
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