Posner's Missing Concept of Law: A response to Eric Posner - Evaluating the Effects of International Law: Next Steps

We and Eric Posner will just have to agree to disagree about the extent to which domestic legal scholarship has been overall, around the globe, dominated by compliance studies; nevertheless, we do take his point about compliance being an ‘obsession’ in American scholarship during certain historical periods (and we ourselves mentioned specifically in this regard both law and economics and the legal realism movement). But this is secondary to the real question. To understand the real grounds of intellectual difference between us and Posner it is valuable to state the important measure of agreement to which he rightly alludes. Like Posner we think that ‘compliance is a legitimate focus for academics’ (p. 334). At the same time, Posner endorses one of the most basic concerns of our article: the need to ‘pay attention to all of the effects of international law, and not just to compliance’ (p. 334). We also agree that the study of real world effects of international law could be considered, as Posner puts it, as in its ‘infancy’ in the sense that existing studies rarely take adequate account of effects that we call ‘beyond compliance’.

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