August 26, 2009


Posner, Eric A., The Perils of Global Legalism (Chicago & London: U. of Chicago Press, 2009) (“The premise of this book is that law and legal institutions can obtain prestige among the public when they function in a highly effective manner, especially when they function more effectively than political institutions do. The prestige of the law often leads to legalism, which is a view that loses sight of the social function of law and sees it as an end in itself, one that thinks of moral and political problems in legal categories and asks lawyers and judges rather than politicians to solve them. In the United States, legalism has been a powerful way of thinking for almost two hundred years. Legalistic think has favorably disposed Americans to international law where, however, legal institutions have always been extremely weak and unreliable, despite the many efforts (since World War I, led by the United States) to construct and strengthen them.” Id. at xii. “So international law is a peculiar type of law that exists but lacks effective legal institutions to manage it. Legalism has its global counterpart, global legalism, which is a contradictory faith that both acknowledges this problem—in a phrase, the problem of “aw without government”—but also believes that international law can nonetheless carry out its functions and deserves loyalty beyond national interest-base cost-benefit calculations. The reasoning is as follows. True, world government does not exist, and the reason is that nations refuse to yield authority to supranational institutions that they cannot trust. But nations can yield authority that authority to international law that, after all, they have agreed to. If the authority of international law merely rests on nations’ consent, then why shouldn’t a nation withdraw its consent if it believes that it can do better by violating the law? The answer is that if states do that, international law will lose its authority, and thus its ability to constrain nations to ac in the general interest. International law is effective because state defer to it; they defer to it because it is effective.” Id. at xiii. This is a worthwhile read. Eric Posner does very good work, which is not to say that I agree with the analysis, and is well worth any law student investment of time.. Also, see Siebert below for what I think is a contrasting perspective.).

Siebert, Horst, Rules for the Global Economy (Princeton & Oxford: Princeton U. Press, 2009) (“In this book, I analyze the institutional arrangement that deal with global economic issues. The principal question to which my study tries to give an answer may be put in the following way. Under which conditions do international rules come into existence? That is to say, under which circumstances do national approaches prove no longer sufficient to solve economic problems, so that sovereign states are prepared to cede part of their sovereignty to international rule systems? And, finally, do international rules contribute to an improvement in the human condition?” Id. at ix. What Siebert does in this book is to layout a transaction-costs approach to answering the two questions raised. Those readers familiar with Coase’s The Problem of Social Cost, will comprehend the basic argument. This is a very worthwhile read for students of international law and those concerned with international trade, international environmental protection, international human rights, that is, just about any issue where you have reached that point to enlightenment where you know that international cooperation is a necessity.).