The Limits of Leviathan: Contract Theory and the Enforcement of International Law

Description

Much of international law, like much of contract, is enforced not by independent sanctions but rather through cooperative interaction among the parties, with repeat dealings, reputation, and a preference for reciprocity doing most of the enforcement work. Originally published in 2006, The Limits of Leviathan identifies areas in international law where formal enforcement provides the most promising means of promoting cooperation and where it does not. In particular, it looks at the International Criminal Court, the rules for world trade, efforts to enlist domestic courts to enforce orders of the International Court of Justice, domestic judicial enforcement of the Geneva Convention, the domain of international commercial agreements, and the question of odious debt incurred by sovereigns. This book explains how international law, like contract, depends largely on the willingness of responsible parties to make commitments.

Robert Scott is a nationally recognized scholar and teacher in the fields of contracts, commercial transactions and bankruptcy. He was Lewis F. Powell Jr. Professor of Law at the University of Virginia School of Law from 1982-2003, and William L. Matheson & Robert M. Morgenthau Distinguished Professor from 2001-03. In 2003 he was named an inaugural recipient of the David and Mary Harrison Distinguished Professorship. He has delivered numerous papers and published extensively in law journals. He has co-authored four books on contracts and commercial transactions. Among his many articles are six that he co-authored with Prof. Charles Goetz that set the standard for the economic analysis of the law of contracts. Paul Stephan is an expert on international business and Soviet and post-Soviet legal systems who spent his career studying and writing about the globalization of the world economy and the transition away from Soviet-style socialism. He joined the Virginia faculty in 1979 and was the Percy Brown Jr. Professor of Law from 1991 to 2003. He has written extensively on international law, corruption, and the history of the Cold War, as well as on taxation and constitutional law. He has worked in Russia, Georgia, Ukraine, Albania, and Slovakia on behalf of the U.S. Treasury and in Kazakhstan and Azerbaijan on behalf of the International Monetary Fund.

'Professors Scott and Stephan have produced an important and thought-provoking book on the intersection of contract theory and international law. The authors contend that there is too much enforcement of international law by private parties who file complaints before international tribunals and domestic courts armed with the power to sanction nations that fail to live up to their treaty bargains. This is a provocative claim, one that challenges the widely-held views of international lawyers and political scientists that the international legal system is weak and needs to be strengthened. The authors support their theory of optimal enforcement of international agreements with numerous examples ranging across human rights, trade, international criminal law, and intellectual property. And they include specific prescriptions for governments and policymakers. Scholars of international cooperation and treaty design would do well to give The Limits of Leviathan the careful attention that it deserves.' Laurence R. Helfer, Professor of Law, Vanderbilt University Law School 'The Limits of Leviathan is an original and an important book. It is the first use of modern contract theory to explain and to improve the relation between formal and informal enforcement of treaties and other international agreements. Much international law rests on these consensual arrangements, and contract theory is meant to explain consensual arrangements. The book's lucid explanations and critiques of existing practice thus will be very helpful to international lawyers, and they will also extend the reach of contract theory itself.' Alan Schwartz, Sterling Professor of Law, Yale Law School 'One of the most significant developments in international law in the past decades has been the rise of institutionalized international tribunals - like the WTO dispute resolution mechanisms, various EU courts, and the International Criminal Court - that can enforce international law against states. The Limits of Leviathan employs economic theories of contract formation and enforcement to explain the rise and operation of these institutions. Scott and Stephan show how a combination of formal institutional sanctions and more traditional informal sanctioning methods (such as retaliation and reputational loss) work together to foster cooperation among nations. They also provide a framework for explaining how institutionalized enforcement can go too far and retard cooperation among nations. The Limits of Leviathan is a realistic, hard-nosed examination of the promise and perils of international enforcement institutions, and an important contribution to the burgeoning use of social science methodologies to explain international relations.' Jack L. Goldsmith, Henry L. Shattuck Professor of Law, Harvard Law School