| Special Workshop Title: | Law and Economics and Legal Scholarship |
| Author: | Fernando R. Tesón, Tobias Simon Eminent Scholar, Florida State University |
| Paper Title: | Customary International Law and Game Theory |
| Abstract: | Professors Jack Goldsmith and Eric Posner recently offered a game-theoretical account of customary international law which attempts to explain it resorting, as expected, only to notions of national interest. Professor Marc Chinen, relying in part on my own work, challenges that account as paying insufficient attention to the normativity of customary international law to opinio juris. In this paper I evaluate the controversy and argue that it stems from an ambiguity in the concept of what it is to explain norms. I suggest that the Goldsmith-Posner account is generally accurate as an explanation of how customary norms emerge in the international system, while Chinen’s account tries to reconstruct the way international lawyers think about customary law. I conclude with a few comments on whether or not it is possible to explain the concept of international custom in an intellectually satisfactory manner. |
This page was last updated on: 2003-05-04.