Behaviorial international law.

• Author: Broude, Tomer
• Position: III. Objections to Behavioral International Law and Methodological Responses A. The Individual Focus of Behavioral Theory 3. The Individual as a Subject and Decisionmaker in International Law through Conclusion, with footnotes, p. 1129-1157

3. The Individual as a Subject and Decisionmaker in International Law

   A third response to the individualist methodological objection would be to simply focus on individual decisionmaking that relates to international law. The place of the individual is no longer in question or "prospective," as it was half a century ago. (100) In classical international law, individual actions may be attributed to the state, giving rise to state responsibility under various circumstances, (101) and so analyses of individual behavior are important for understanding state behavior. Put differently, many cases of compliance or noncompliance with international law are ultimately made by individuals, such as soldiers in the field, immigration officers, customs officials, and legal advisors. Moreover, in modern international law, individuals are increasingly direct addressees and beneficiaries of international law, especially in the areas of investment protection, international human rights, international criminal law, and international humanitarian law, the last constituting an area with major scope for behavioral research, as will be discussed in the next subsection. In addition, some state-to-state law takes into account, or is premised on, assumptions about private behavior, such as the World Trade Organization's goal of "providing security and predictability" to traders. (102)

   The point need not be belabored here: behavioral analysis of international law is not restricted to unitary state behavior. There is a rich field of international legal issues that can be examined at the level of individual behavioral economics, in addition to the state level and group decisionmaking levels, whose application is more complex but with the potential to be at least as illuminating.

   2. The Empirical Foundations of Behavioral Theory

   It is perhaps the crowning achievement of behavioral analysis of law that it is based on claims about human behavior that are empirically substantiated. Some go so far as to say that "legal scholarship not drawing on empirical behavioral findings is not engaged in a behavioral analysis of law." (103) If the behavioral approach's predictions about actors' actions in the face of legal prescriptions are more dependable and realistic than those of standard rational choice theory with all its explanatory strengths, it is because of the behavioral approach's empirical, and more so, experimental, basis. In this respect, an objection could be raised toward a behavioral approach to international law: that the empirical--and especially experimental--insights and methods of behavioral analysis are difficult, if not impossible, to apply to international law.

   Clearly, there are methodological difficulties in applying an experimental empirical approach to international law. At the state level, one cannot conduct experiments. At the group decisionmaking level, access to actual decisionmaking groups and senior decisionmakers is normally limited for most researchers. Experimental research with individuals also poses significant challenges. Access to real international law decisionmakers such as trade officials or military commanders for experimental purposes is also constrained. Even if achieved, it would be difficult to design experiments that replicate the real-life environment of decisionmaking. However, this objection merely underscores the nonempirical basis of most international legal research. Recent years have witnessed a growing cadre of legal scholars who apply quantitative and qualitative empirical research methods to international law. (104) Nonbehavioral empirical research of international law encounters many of the same difficulties that behavioral research of international law would be faced with, and copes with them successfully.

   There are, in fact, a number of ways in which behavioral analysis could be meaningfully applied to international law, on the basis of empirical findings, experimental or not. In this sense, a behavioral approach to international law is no different than general behavioral legal research. Following Tor's useful menu for research, (105) behavioral insights on the law can be gained through three complementary channels: (1) theoretical applications, (2) experimental research, and (3) field studies. The strengths and weaknesses of each methodology should be recognized, but each of them retains an empirical basis and could be applied to different international legal puzzles, showing that this objection is definitely not one that can stop behavioral analysis of international law at the threshold.

1. Theoretical Applications

   Theoretical applications take research scenarios in which a divergence from perfect rationality is noted on the basis of general empirical evidence, and then apply the ramifications to a legal rule or institution. The application is theoretical in the sense that although it is empirically valid in one area, it is being applied in a different legal field and set of circumstances; hence, empirical authority is reduced. This migrational methodology will be familiar to most interdisciplinary legal scholars: theoretical knowledge from non-legal fields is adopted and applied to legal issues; empirical knowledge from one field of law migrates to another. In international legal research, theoretical application could also include cases in which insights from behavioral economics in other areas of law are applied to international law, or instances in which nonlegal IR research on behavior of states and other actors has international legal implications.

   For example, theoretical applications of cognitive psychology challenge the traditional rational choice parameters of deterrence in criminal law (106) by suggesting (among other points) that optimism or overconfidence biases could cause potential offenders to underestimate the probability that they will be apprehended and convicted. Moreover, the availability bias might mean that visibly increased enforcement has a greater effect on deterrence than increased punishment. (107) These are both theoretical applications of general expressions of bounded rationality to a legal issue, with implications for criminal enforcement policy. Given that a central goal of international criminal justice is deterrence and prevention of future international crimes by punishing existing ones, (108) any theoretical application of behavioral psychology to criminal law would by extension be relevant to international criminal law.

   However, this example demonstrates the main weakness of theoretical application as a methodology: the external validity challenge, which creates and augments the difficulty in transferring empirical findings from one research group to another group that differs from the first in its personality and environment. (109) To what extent can behavioral traits established in experimental research among college students under laboratory conditions be applicable to criminals? To what extent can theories applied to criminals in the setting of domestic law and society be reapplied to potential war criminals acting in very different circumstances and under very different utility functions? When the external validity--or generalizability--of behavioral inferences is questionable, theoretical applications can still be highly useful because they have the ability to generate interesting hypotheses. However, these hypotheses would then need to be tested against relevant empirical evidence through field studies or experimental research. To be sure, this will not always be possible, in which case the behavioral insights should be understood as bearing reduced research value, but not less than that of nonempirical methods.

2. Experimental Research

   Experimental behavioral legal research entails controlled and randomized experiments in which participants' reactions to different treatments in legal settings are polled and statistically compared, within experimental and control groups. This allows the researcher "to draw conclusions about the causal effects of the experimental treatment." (110) For example, groups of randomly selected students can be asked to play the role of trial jurors and to answer certain questions with different fact patterns. In international legal issues, the same groups could be asked to pose as individuals in combat settings with respect to rules of international humanitarian law, or as regular citizens with respect to human rights issues.

   While the strength of experimental research lies in its controlled and randomized environment, this is also the source of its weakness. Again we are faced with the problem of external validity. Both the subjects and the circumstances are very different from those that govern in reality. Although there is evidence that behavioral simulations and surveys, properly conducted, can provide reliable evidence that conforms to results from the field, (111) experimental research is often treated with suspicion in the social sciences as lacking in its realism and generalizability. (112) Nevertheless, some scholars contend that most of the objections to experimental research are misguided and that more experimental social science research should be conducted as a significant complement to and corroboration of field research. (113) Behavioral legal research--certainly with respect to international law--faces similar dilemmas; but ultimately, their resolution will depend on the ability to conduct meaningful experimental research on particular research questions, and researchers should take cognizance of this in both their selection of research topics and in the design of experiments. For example, experimental studies relating to international humanitarian law or trade law can be upgraded by conducting controlled experiments with groups of relevant decisionmakers, such as military commanders and trade officials and executives, respectively. (114)

3. Field Studies

   Experimental research is not the...