Dennis Patterson

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794)

One of the interesting claims in this timely, important and controversial article is that constitutional law may look different from international law but it is not.¹ Like international law, there is no State enforcement authority for decisions of the Supreme Court.  Additionally, it is doubtful there is a Rule of Recognition in constitutional law (e.g., contests over the meaning of key terms and interpretive strategies is pervasive).  The conclusion to be drawn is this: if you question the efficacy of international law, then you have to do the same with constitutional law.²

Given the structural similarities between constitutional and international law, why is it that compliance is never questioned in constitutional law but is always foremost in the context of international law?  The authors cover a variety of theories but suggest that game theory might provide the best answer.  When we speak of “the State,” could it turn out that the State is just a site for the resolution of collective action problems?  Might it be better to focus not on formal characteristics of legitimacy and authority (e.g., sovereignty) but a different question altogether?  That question, the authors suggest, is “how law works?”

In this short review, I can only fail to do justice to what is surely one of the most interesting articles on international law in the literature.  In an era when legal theorists are grappling with the conceptual challenges of transnational legal orders, Goldsmith and Levinson supply them with a rich and suggestive article.

Surely questions remain. The primary problem with a game theory approach to these issues is that game theory is an explanatory and not a normative approach to law.  Game theory might answer the question “Why do state comply with international law?” but it cannot answer the question of the normative status of law.  This question remains on the table.

1. Goldsmith and Levinson detail their claim thus: “Despite superficial appearances to the contrary, constitutional law, like international law, lacks a centralized legislature to specify and update legal norms, and although constitutional courts possess some ability to resolve the existence and meaning of constitutional norms, they are limited in special ways that prevent them from providing authoritative settlement. As a result, constitutional law suf- fers from the same kinds of foundational uncertainty and contestation over meaning that are viewed as characteristic of international law. Constitutional law also shares with international law the absence of an enforcement authority capable of coercing powerful political actors to comply with unpopular decisions. This lack of an enforcement authority raises doubts about legal compliance and, more generally, the ability of legal norms to constrain and not just reflect political interests. And in much the same way as international law, constitutional law strains to legitimate the limits it purports to impose on popular self- government by invoking various forms (or fictions) of prior sovereign consent.” (1794).
2. They write: “By assimilating constitutional and international law and examining how the two systems similarly manage the peculiar difficulties of running a legal system outside of the state, we hope to bring focus to the possibilities and limitations of public law as a distinctive legal form.”  GL, at 1796.