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The Power and Purpose of International LawInsights from the Theory and Practice of Enforcement$
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Mary Ellen O'Connell

Print publication date: 2008

Print ISBN-13: 9780195368949

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195368949.001.0001

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New Classical Enforcement Theory

New Classical Enforcement Theory

(p.99) Chapter 3 New Classical Enforcement Theory
The Power and Purpose of International Law

Mary Ellen O'Connell

Oxford University Press

Responding to Henkin's compliance theory, Goldsmith and Posner asserted in 2005 that “rational choice” theory proves that few states ever truly “comply” with international law. What looks like compliance is pursuit of “self” interest. They conclude that violations of international law, therefore, cannot be condemned as violations of law. To apply their theory, however, they make a series of implausible assumptions and fail to incorporate developments in behavioral economics or the insights of post-modernism. Both support the importance of such human impulses as altruism and belief. And it is these that actually support the claim that international law is law and that coercive means may be used to enforce it — as was always understood in natural law theory. Reviving natural law theory to explain the basis of international law's authority can best be done by incorporating process theory and retaining the centrality of positivism.

Keywords:   rational choice, natural law, positivism, process theory, legal authority, post-modernism

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