Fletcher Professor Joel Trachtman Publishes New Book, “The Economic Structure of International Law”
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his past week, the International Criminal Court (ICC) in The Hague opened its first trial since its establishment in 2002 with the war crimes prosecution of Thomas Lubanga. Regardless of the outcome of this particular trial, a larger set of questions looms for policymakers: what, if anything, will the Court change in the world—and will that change be for the better? As the ICC and similar bodies struggle to establish their relevance in today’s international legal system, the benefits of the rule of law are not clearly understood on an empirical level because legal scholars have not often attempted to measure them.
However, Joel Trachtman of The Fletcher School has just published a new book aimed at improving the rigor of analysis applied to questions of international law, including the ICC. The Economic Structure of International Law, published by Harvard University Press, argues for a social scientific approach to international law based on establishing theories and testing hypotheses. Through economic modeling and empirical testing, Trachtman argues, scholars and practitioners can base their analysis on the consequences of legal action rather than just the principles.
Most anyone who has sat through an introductory economics course has been exposed to the theoretical idea that minimum wage laws lead to unemployment by, like other price floors, preventing markets from clearing. Similarly, Trachtman’s book argues that economic modeling based on price theory, transaction cost analysis, game theory, and statistical or econometric approaches can all be ways to gain a better understanding of the end result of laws. While this method of analysis has found adherents among analysts of domestic law, it has yet to be systematically applied to international law. Thus, for example, recent studies have suggest that, while trade preferences have been a key point of contention during the Doha round of the World Trade Organization (WTO) negotiations, recent economic evidence suggests that such preferences are not particularly helpful to developing countries.
Over the course of seven chapters, The Economic Structure of International Law applies a social science lens to topics such as treaty compliance, binding transfers of authority through customary international law, allocation of authority among different functional organizations (such as environment, labor, trade, or security), the utility of international organizations, and the role of adjudicators.
At the heart of the discussion, meanwhile, is the issue of the allocation of jurisdiction. “What sets international law apart from domestic law in unitary states,” writes Tracthman, “is that international law is concerned, first and foremost, with issues of allocation of authority.” The key for analysis, then, is to understand how and when jurisdiction creates opportunities for abuse and where it allows international law to be constructively applied.
It is to this latter issue of application where Trachtman has been turning his attention lately. Since completing the book, he began work on a new project applying social science analysis specifically to international migration law. Trachtman is trying to find out how international law can change the structure of domestic political coalition structures surrounding migration.
If the book’s interdisciplinary approach sounds familiar to those in The Fletcher School community, there is a reason. Trachtman explains that his time at The Fletcher School served as inspiration for his research. As a young scholar at Fletcher, he sought out ways to incorporate more social science research into his own expertise of law. Beginning in the early 1990s, Trachtman hit upon law and economics as an approach to analysis, which was lacking in the international legal sphere. Indeed, the book’s consequentialist theme offers a response to (and perhaps a way around) the broader debate between natural law and positive law perspectives. He began work on the book in 2002.
Trachtman views his research as complementary to the work of fellow scholars like Andrew Guzman, Alan Sykes, and Jide Nzelibe and hopes to see his students and their colleagues applying this social science perspective in their own careers and work. The Economic Structure of International Law is likely to appeal to a wide variety of readers, from academia to government to international organizations, but the accessible, lucid style should ensure that Trachtman’s book is standard reading at Fletcher and beyond for many years to come.
Kirby Reiling F’09