Blockchain Papers

Ikhtiyor Djuraev, Azim Baratov, Shokhjakhon Khujayev, Iroda Yakubova · 7 authors

This study investigates the transformative impact of digitization on legal systems in developing countries, emphasizing the integration of emerging technologies such as blockchain and smart contracts. By exploring case studies from India, Kenya, Brazil, Rwanda, South Africa, the Philippines, and Ghana, the research highlights how digital adoption enhances legal infrastructure, expands access to justice, and drives regulatory evolution. A mixed-method approach, combining qualitative interviews and quantitative analysis of legal reforms, reveals that digitization significantly reduces case backlogs, improves transparency, and accelerates judicial processes. However, persistent challenges, including inadequate digital infrastructure, disparities in digital literacy, and cybersecurity vulnerabilities, underscore the need for coordinated interventions. The study identifies blockchain as a critical tool for ensuring the integrity and security of legal records, providing tamper-proof documentation, and fostering trust in legal processes. Similarly, smart contracts streamline legal transactions by automating and enforcing agreements, reducing costs, and enhancing efficiency. These technologies are essential for modernizing judicial frameworks and addressing governance gaps, particularly in regions grappling with corruption and bureaucratic inefficiencies. Ultimately, the findings underscore the importance of phased implementation strategies, investments in digital literacy, and inclusive policy frameworks to maximize the benefits of legal digitization. By integrating blockchain and smart contracts, developing countries can build resilient, transparent, and accessible legal systems that respond to the dynamic needs of their societies.

Manon Fafet

Abstract The Droit de Suite (DDS), designed to offer heightened protection for artists, remains absent from Japan’s legislative framework, potentially creating disparities among creators. The implementation of DDS in Japan encounters hurdles due to its administration’s intricate nature and associated costs. Non-Fungible Tokens (NFTs) have emerged as a promising solution, streamlining DDS processes through token transactions and obviating the need for time-intensive identification procedures. Japanese NFT exchange platforms have already begun providing DDS services, contributing to a more efficient and equitable system. This article delves into the legal complexities of integrating NFTs into the DDS structure, examining their enforceability in Japanese courts and evaluating the efficacy of tokenization within the country. While the discussion is primarily theoretical, the paper explores the concept of DDS, scrutinizes the essence and validity of NFT technology’s cornerstone—smart contracts, and explores the nuances of NFT transfers in Japan, a pivotal element for DDS implementation.

Joseph Lee, Zoe Ejiofor

The Web3 Governance: Law and Policy Conference, convened by Dr Joseph Lee and Professor Jyh-An Lee was truly an international affair. There were academics from The Chinese University of Hong Kong (CUHK), University of Manchester, China University of Political Science and Law, Monash University (Australia), University of Padova (Italy), Newcastle University and Capital Normal University (China). Each of the academics gave an insightful view on the burning questions within this field of law.

Caroline Lequesne Roth

International audience

Alexander Wilhelm

No abstract is available for this record.

Simon Geiregat

Bitcoin werkt omdat personen spelregels afspreken over haar werking. De waarde van bitcoins vindt geen grondslag in data, maar in een meerpartijenovereenkomst. De houder van een Bitcoinportemonnee is bijgevolg een schuldeiser, net zoals de houder van een zichtrekening. Een schuldeiser mag zich in België eigenaar van zijn recht noemen. Bitcoins zijn bijgevolg geen onlichamelijke goederen sui generis. Hun goederenrechtelijk statuut valt integendeel terug op dat van schuldvorderingen.

V. Tweehuysen

No abstract is available for this record.

Rosalie Koolhoven

Can the parties to a conctract agree that the consideration should be paid in bitcoins? Or will this obligation be qualified as the delivery of 'objects'?

Sabino Cassese

The literature of the last ten years contains numerous references to two opposite trends: on one hand, “the end of administrative law,” on the other, the “new administrative law.” According to the first body of literature, which is mainly of French and Belgian origins, administrative law has lost its peculiarities (thus giving rise to the increasing difficulty in defining its status and scope); it has become a hybrid, has been destabilized and destructured, and is now in ruins. This situation is—according to this narrative—the product of various, conflicting causes: globalization, constitutionalization, destatization, privatization, decentralization. As a result of the pressures stemming from these diverse trends, administrative law is slowly losing its raison d’être—its center: the state.1 On the contrary, according to the second point of view, held mainly by German observers, a new administrative law is developing, due to a process of change, modernization, and reform. This new, or postmodern, administrative law is more open than the old administrative law, and is focused on “steering” rather than on ordering. This new administrative law is—in this view—the product of the new role of the state as a promoter, as a facilitator, as a risk regulator, and as the helmsman of economy and society. It therefore requires a new, more interdisciplinary, approach.2 Should we share the view that administrative law has reached the final stage of its life, or, on the contrary, that it is undergoing a process of intense change and renewal? What prevails now: continuity and decline, or development and modernization? Before providing an answer to these questions, I shall address the more general issue of continuity and change in administrative law. For a long time, administrative law was conceived as the domain of stability and continuity. Otto Mayer, in the introduction to the third edition of his Deutsches Verwaltungsrecht, observed that it was a common opinion of his times that “Verfassungsrecht vergeht, Verwaltungsrecht besteht” (constitutional law passes, administrative law remains).3 This conclusion was strengthened by the dogmatic approach adopted by administrative law scholarship in many European countries, where the dogmatic reinterpretation of Roman law by the German scholar Friedrich von Savigny was taken for granted and imported into the study of administrative law. For instance, in Italy, the founding father of administrative law scholarship, Vittorio Emanuele Orlando, espoused the “systematic approach” developed by Savigny and by scholars of private law. Therefore, concepts and methods possessing a high degree of stability in the field of private law became familiar to administrative law scholarship. Administrative law was founded on timeless tenets or dogmas derived from private law. Continuity in paradigms of study paralleled the idea of continuity in administrative institutions. Over the last twenty years, both assumptions have become obsolete. Administrative institutions have undergone impressive changes. Consider the accumulation of these: globalization, privatization, citizens’ participation, new global fiscal responsibilities. The very idea that administrative law concepts could remain stable over time has been abandoned. The fast-developing phenomena in administrative law have rendered the field’s cultural paradigms inadequate. New concepts and ideas have penetrated the literature: new public management, governance, accountability, expert bodies, steering. But, as continuity and change go hand in hand, it is difficult to study this mosaic of contradictions using the old approaches. The purpose of this paper is to catalog and briefly review the major changes that have occurred in Europe over the last twenty years, and to mention the resulting changes produced in the methods used to study administrative law.4 Discontinuity in the realm of administrative institutions requires discontinuity in the approaches adopted for studying the new administrative law. The scholarship examining this new administrative law needs reorientation and a new framework, capable of explaining the changes that have taken place. According to Otto Mayer, “[t]he administration is the activity of the State for the accomplishment of its ends.”5 Therefore, administrative law originated as the product of the state, but has now become dependent on other powers of transnational, global, and local dimensions. Many complex phenomena are currently unfolding: the growth of ultra-national and intra-national powers; increasing “dédoublement fonctionnel” (functional splitting), in which national governments act both as sovereign powers and as “delegates” of ultra-national bodies; the development of certain basic principles of administrative law at global, national, and local levels (e.g., in Europe, the principle of “good administration”); open statehood (“offene Staatlichkeit”) and increased communication between national legal orders, thanks to which principles may circulate (e.g., the principle of proportionality, first developed in the German legal order, was then imported in the European Union, and from there into many national legal orders); development of principles that are shared by several legal orders, at the global, national, and local levels, which therefore become universal (e.g., the right to a hearing, the duty to give reasons, judicial review), and thus provide increased opportunities for popular participation, but also produce increasing conflicts; rights are not recognized only by national constitutions, but also by global rules and imposed by these on national legal orders; national governments are subject to a contradictory trend: on one hand, their sovereignty is diminished; on the other, they acquire new tasks (e.g., control of efforts against global terrorism or global warming) that they could not possibly have gained in previous times, but that they are now obliged to share with other states (for that reason, the relevant literature contains several remarks on the state’s declining sovereignty and on the need to “bring the State back in”). The most important of these developments is the growth of a global space and a global polity. These are not only arenas in which contending forces operate, but also sets of organizations claiming control not over territories and people, but over functions.6 These developments require administrative law scholarship to be denationalized. Thus far, nationalism has been the prevailing mode through which administrative law scholarship has been conducted. But, as common core principles have developed at the national, transnational, and global levels, administrative law scholarship must give up this traditional nation-based approach. Indeed, for example, to understand the European Union, it is necessary to draw inspiration from the imperial paradigm rather than the state one. Like the empires, the Union is a compound structure. Attempts to establish a common European area of research in the field of public law are already under way.7 Representative democracy and the traditional legitimacy paradigm (featuring governing bodies vs. governed) have been exhausted. In all countries, and globally, public powers and civil societies are in search of new sources of legitimacy, and new ways of holding power accountable have been tested. National and supranational legal orders are developing in two different directions. Vertical accountability is increasingly juxtaposed to horizontal accountability (inter-institutional accountability).8 National governments respond to other national governments and to supranational institutions, and independent regulatory agencies balance ministerial bodies. Power has shifted to “technocrat–guardians” who are shielded from political influence.9 Delegation of power through elections is now flanked by participation in the decision-making process: major urban planning, environmental, and regulatory decisions require public inquiries through which individuals can make their voices heard. Popular participation and deliberative democracy complement representative democracy. These constitutional developments also affect administrative law. At the global level, administrative networking and shared administration are made necessary by increased political cooperation in intergovernmental global institutions and in hybrid global regulatory bodies. At the national level, collaboration and horizontal accountability are products of the increased fragmentation of national executives into many different agencies. To enable participation, detailed procedural regulations are necessary; therefore, administrative regulation increasingly consists of regulation of procedures (freedom grows in the interstices of procedure). As a consequence of these developments, an entirely new area of study is opened up to the scrutiny of administrative law scholarship, which, in the past, developed essentially along vertical lines. This requires renewed attention to cooperation, codecision, and reciprocal accountability, as well as to procedures, disclosure, and access to information, notice and comment, hearings, and reasoned decisions. In particular, the proceduralization of administrative law makes a new approach necessary, because administrative decisions no longer take center stage and have been replaced by procedure. Administrative law was initially established as a “special” law, separate from private law. Globalization, overburdened governments, privatization, and new public management techniques have all de-emphasized and blurred the public–private divide. Private law invades the space of public law and erodes its specificity.10 In the global polity, hybrid and private bodies are as numerous as public bodies. National governments make increasing use of private law. Contracts between the state and private persons, once almost unknown (as they challenged the very idea of state sovereignty), are now a common feature of state activity. Consequently, the state becomes dependent upon collaboration with civil society. With the emergence of the enabling state, the focus of public activity has shifted toward measures aimed at financing benefits through the market. Therefore, a large part of social welfare has become a lucrative, privatized, commercial, and for-profit activity.11 Outsourcing and public–private partnerships increase efficiency and sectionalism, which in turn contribute to the fragmentation of the state. On the contrary, private institutions increasingly apply administrative law rules (two examples are the Internet Corporation for Assigned Names and Numbers (ICANN) by-laws, which contain a sort of administrative procedure act and the World Anti-Doping Agency (WADA) regulations12). As public bodies are not necessarily subject to administrative law, so too private bodies are not necessarily subject to private law. Topics such as state-owned enterprises, public–private partnerships, public incentives to private companies, and market-oriented regulation thus become crucial for the analysis of administrative law. These developments make it necessary to abandon the public law regime paradigm, to de-publicize the approach adopted by administrative law scholarship and to study the ambiguities and the richness of the interconnections between public and private law. Between the nineteenth and the twentieth centuries, Weberian-style administration was a “machine,” with linear development and linear decision-making processes. According to this mechanical form of regulation, the executive branch was ruled from above (politicians governed bureaucrats), agencies developed according to popular demand for services as interpreted by parliaments, decision-making processes ran directly from the initiator (usually a high-level politician) to the deciding officer (again a politician), through the machinery of the executive agencies. Over the past fifty years, the picture has become more complex. Administration, politics, and society now form a triangle; there is no longer a clear dividing line between administration and society; negotiation runs side by side with command and control; as soon as new services require new structures, these new structures establish links with their institutional clients and attract new clients (both internally and externally); decision-making processes are replaced or accompanied by consultation, mediation, Parliament-like procedures, or, simply, muddling through. “The old image of a hierarchical public administration single-handedly implementing well-defined policy goals set down in legislation must today compete with a vision of the administrative process as open-ended, collaborative, and networked.”13 Administrative law scholarship must adapt its paradigms and research techniques to this new reality. It must be prepared to study administrative law less as a mechanical structure than as a market, where many intersecting negotiations take place. “To capture the new reality, comparative administrative law should be framed no longer as the rules and judicial-redress mechanisms that guarantee the effective working of administration, but rather as an accountability network through which civil servants are embedded in their liberal-democratic social orders.”14 This approach requires paying more attention to the rules of change and to a different conception of administrative law, which is to be seen not as a static set of rules and mechanisms, but as a dynamic system, capable of interacting with its environment. The executive branch, which once served the elected politicians and the state-provider of a few basic services (e.g., defense, public order, tax collection), has now become society’s largest artifact. It has also become increasingly separated from politics, becoming, rather, ever more embedded in society. The state is no longer extraneous to society, as it is not extraneous to the economy. These developments are noticeable if the size of government apparatuses is measured: a century ago, public employment occupied between one to five percent of the labor force, a figure that has risen now to between 10 and 50 percent.15 The state has become the largest employer and the most important financial intermediary. Further, it is the main actor in all major social and economic events. The emergence of the administrative state has rendered regulation pervasive. Moreover, the administrative “machine” has been able, over time, to adjust to political and societal pressures, first by expanding, then by reducing, and now by re-expanding its own dimensions. The administrative structure of government has become embedded in politics, in society, and in the economy, reproducing the main features of a corporatist state, where different branches of the executive or agencies become “captured” by their constituent interests, but still “capture” a certain degree of sectorial legitimacy from them. Therefore, while constitutional law is still organized around a center (Parliament, the government, a supreme court), administrative law has lost its center and has become fragmented and multipolar. Therefore, administration and its law cannot be understood if the administrative culture of a country and its civic values are not studied. For example, the degree of industrialization and the experience of wars and the need to maintain large armies all have a significant impact on the management of government, both in terms of diffuse managerial cultures and popular attitudes of skepticism or deference vis-à-vis the state. The next task for administrative law scholarship shall be that of bringing society and politics back into the study of the administration, analyzing the many links between society and administrative agencies, in which politics often acts as an intermediary. Traditionally, administrative law was based on the bipolarity between the “administré” and the “autorité publique.” In the last thirty years, two developments have occurred. The “administré,” subject to administrative authorities, has become a citizen, fully entitled to rights vis-à-vis the government: for example, he has a right to be informed, to make his voice heard, to receive reasoned decisions, and to have administrative decisions reviewed by independent courts. The “rights revolution” has produced many major changes in the field of administrative law, as well. Broadened suffrage, organized societies, and the fragmentation of executives have replaced bipolarity with multipolarity. Today, the administrative landscape is dominated by multipolar a of public bodies and conflicting private For example, there are numerous state and agencies in the field of private that with and The state is penetrated by conflicting private interests, which, state agencies must address (e.g., and economic also an administrative and require administrative or political far, administrative law scholarship has focused on the only as an of public orders or benefits and on the between the State and New administrative law scholarship has a new It must a view of and governing administrative not only as regulations of administrative power but as of citizens’ rights vis-à-vis administrative on agencies, to the of private It must study the in which conflicting one and and in which agencies act as and is subject to the an administrative law the law not public in their are and such as and in which the executive is from legal and once are now increasingly as to the of law and to the principle of judicial therefore, a between the executive powers and social for institutions. Moreover, there are where agencies must address complex and in a or the principle of (e.g., in and cannot be by of the executive makes to For example, it and or which are These developments open up an entirely new set of for administrative law scholarship. administrative law scholarship has on the of judicial decisions, and institutional The new scholarship has a more difficult to at institutional the of and judicial decisions. It must with and of and in to study these In the past, in the European and wars the main of changes in administrative law. the of and of wars has to an This has an impact on as they are from major change, or subject to a change that more Administrative law is more dependent upon and previous therefore, institutional is the Administrative law therefore consists of and “the approaches have not Administrative law has been a process of to societal the but their has been in the Moreover, administrative institutions and are by law in state is a The that administrative development are ideas and economic constitutional social time and according to This requires of the of of their and of their of rules and institutions are regulations which changes. The study of these complex structures first an attention to and the in which they to the different to the and it requires an analysis of the between the different to establish they and which rules and institutions As become increasingly legal become more National legal orders are no longer the and of institutions, and between are open legal space national The has become a where it is to go and sets of principles from one legal to are not only legal but also and and policy are at the in administrative law have This not that national legal orders have become and a major role in institutions and from one These developments require two major changes in administrative law scholarship. On one hand, they require it is increasingly that the law of one country cannot be fully understood if it is in Administrative law scholarship cannot to one legal Moreover, at this requires a that the study of the law as in and of law in of legal legal and and legal On the other hand, these developments require and into the picture of legal and the and impact of common ideas and principles in numerous legal In other the developments require the For example, to study the between common law and legal orders, it is necessary to the state on one hand, and on the the of the of law, and and their peculiarities and institutions and as to the state and the of developed in to the German of and its the global and the many national of “new public the of administrative and of the principle of the of and in a common judicial review of administrative the of the different national and as a result of increased communication between legal As administrative law developed first in Europe, it is also important to study the common European of the national administrative scholarship developed as a to mainly and must now more than as it should also and In the past, it was a to individuals for a of legal administrative law scholarship to its own Today, the upon it have and require new techniques of and not one Indeed, it is to state that its own of is no but rather and political of the with the important that administrative law scholarship should not be by a and of certain basic that legal Administrative law must its in the field of social and and its links with it to study the role by the State in the economy, the economic approach to is there that the economic analysis of public law can to the scholars of administrative the executive branch of government is embedded in the realm of politics, and if administration is part of politics, can the study of administrative law political can political in terms of methods and to administrative law and institutional are the in the field of administrative law. Therefore, is an of analysis for administrative law In a and open in which legal orders and become “the national of legal is a legal scholarship with the to be not national, but cannot be by the and must the idea that there is only one form of legal of law not necessarily an that a and organized system, or a must be It therefore, to of on a European on a universal

Nicolle Zeegers

Both scholars and practitioners of law have a lot to win from insights into how political and societal forces have influenced the form and content that is given to specific rules. This is because these forces often continue to play a role in the subsequent phase of implementation. The rational model for analysing collective decision making distinguishes as relevant variables the actors involved, their positions towards the issue at stake, the salience the issue has for these actors and the influence or power of the actors. However, a theory about the collective decision making concerning legal rules would be incomplete without the inclusion of the variables of the rhetorical model. In this article it is clarified why we also need the rhetorical model to explain such decision making. The Dutch Governmental decision making concerning Pre-implantation genetic diagnosis (PGD) in 2008 is analysed as case study. In addition, the rational and the rhetorical model for analysing collective decision making are with respect to the object of research, the main assumption, the kind of application and the questions of what is accepted as the proof of truth and how the researcher is positioned towards the object of his research. This comparison shows that the insights produced by the rhetorical model, contrary to what lawyers often are made to believe, are not necessarily less objective than the insights produced by the rational model.

Joel P. Trachtman

At a time when the Obama administration, the rest of the G20, and other governments, are emphasizing multilateral action to address global problems, such as global warming, terrorism, financial regulation, monetary policy, failed states, and public health, much is at stake in theoretical and empirical arguments about the possibility for effective collective action among groups of states. In The Perils of Global Legalism, Eric Posner argues that these efforts are largely futile. Can it be true that international law offers little or no assistance in response to global collective action problems? Posner grimly asserts that ‘if a world government is not possible, then solving global collective action problems is also not possible’1 (at 8). If he is right, and given that the kind of world government he has in mind is indeed implausible, then the efforts of policy-makers and diplomats should immediately be diverted from efforts to craft international legal responses to global collective action problems, and reallocated to more productive pursuits. The implication of Posner's book: call home the diplomats and be content with the inefficiency implicit in unilateral action to address global collective action problems. From one perspective, this book might be viewed as a welcome dissenting voice amid general calls for more international law, and it rightly rejects what are by now caricatures of the American and European idealists who believe that the world could be perfected if only we wrote and complied with the right laws. Indeed, international law is not a nirvana solution to all our global problems, but merely part of the toolbox of practical political efforts to improve our situation. Posner has applied his considerable analytical talent to the question of when and how international law may be useful. He has no doubt provided a provocative and interesting book. The problem is that Posner is not content merely to show the flaws in the idealistic general argument for more international law. He goes on to make a general argument against more international law. I do not believe that it is possible to make a general argument either for or against more international law. More refined and context-specific analysis will be necessary to know whether more international law is or is not useful in particular contexts. But there is little doubt that international law has been, and will be, useful to solve some global collective action problems. This utility is just as clear as the utility of contracts to solve some inter-firm collective action problems and the utility of social institutions to solve some village-level collective action problems, as shown by the 2009 Nobel economics laureates, Oliver Williamson and Elinor Ostrom, respectively. Posner defines ‘legalism’ as ‘the view that law and legal institutions can keep order and solve policy disputes’ (at 21), while ‘global legalism’ is ‘an excessive faith in the efficacy of international law’ (at xii). Posner describes American-style global legalists as overestimating the social value of international law, and therefore overestimating the reciprocal, retaliatory, or systemic costs of violation, with the effect that they overestimate the effectiveness of international law. How does Posner know that the legalists have generally overestimated the value of international law? Neither he nor they has the necessary context-specific data. Instead of presenting context-specific data, Posner makes a general theoretical argument that multilateral international law has little value to solve collective action problems (as contrasted with coordination problems, where there is by definition no reason to cheat), because it is generally ineffective to do so. For Posner, European-style global legalists simply make unwarranted natural law-based presumptions requiring unmitigated compliance with international law, even where, all things considered, compliance is not beneficial to the acting state. Posner ascribes a progressive vision to these global legalists, stating that the central tenet of global legalism is ‘faith that if international law advances then eventually true international law-enforcing (and eventually law-making) institutions will follow in its wake, and then people will transfer their loyalty’ (at 91, emphasis in original). More international law leads to more international institutions, which together lead to a transfer of loyalty and thus global government. Posner rightly rejects this millennial dialectic. But this is a straw man and in my experience very few, if any, European international lawyers or ‘liberal’ American international lawyers believe in this dialectic. And while we will not soon have global government of the kind Posner envisions, we need to know whether international law offers possible mechanisms to deal with practical, on the ground, global collective action problems. For Posner, a certain scale of institutional infrastructure, and a transfer of loyalty to a world government, would be necessary before international law can be effective. In this way, Posner's views are aligned with the most romantic, pie-in-the-sky, idealists—the only difference is in Posner's pessimism that this romantic vision can be achieved. He sees the transfer of loyalty as necessary to the establishment of a world state, and he sees a world state as essential to the effectiveness of international law. Posner fixates on the state as the exclusive repository of authority and loyalty, and thus argues that it is necessary that there be a world state in order for international law to have strength (at 128). Unlike most international lawyers, his evaluation of existing international law and institutions, and his view of the future, do not identify or anticipate possible centres of authority, and the possibility of law or government, outside even if not in place of, the state. For Posner, international law is generally epiphenomenal in connection with multi-state cooperation problems.2 As part of this fixation on the state, Posner argues that the biggest problem with global legalism is that it espouses law without government. For Posner, in order to have law, you need government in the form of the traditional institutions of the state, including fully empowered legislatures, judiciaries and executives, as well as a monopoly on the use of force. He posits that ‘if it is true that national governments are needed to solve national collective action problems, then it seems that it would follow that a world government would be needed to solve global collective action problems’ (at 8). Consider this syllogism. The premise is debatable, and its extension to the international setting is dependent on a highly questionable, and unsupported, assimilation of the international setting to the domestic setting. That is, even if we accept that a certain type of institution is needed within the state to solve intra-state collective action problems, it cannot simply be assumed that precisely the same institutions are needed or appropriate to solve international collective action problems. A parallel, and equally faulty, syllogism would state that ‘if it is true that humans need oxygen tanks to remain under water, then it follows that oxygen tanks would be needed by fish to remain under water’. In order for this syllogism to be true, a fish would have to be the same as a human with respect to the relevant characteristic. But Posner offers no evidence that the international setting is the same as the state in the relevant characteristic that concerns him. Based on this faulty syllogism, Posner does not allow that collective action problems might be solved by a variety of institutional mechanisms short of a kind of global government modelled on a strong national government. He neglects the possibility of a Coasian choice between the firm and the market – between integration and contract – to solve collective action problems, but insists on integration as the only basis for resolution. He seems to entertain no possibility for nuance or for distinct institutions that may be appropriate for distinctly international collective action problems, or for the distinct international context. In fact, he seems to see no difference between the role of law in the international context as compared to the domestic context. But while for Posner the dynamics of the international and domestic contexts are the same, there is for him a critical difference. The difference is that the domestic setting contains institutions that solve cooperation problems, while the international setting simply does not and will never do so. Posner thus purports to draw ‘a crisp analytic distinction between intrastate cooperation, which is capable of solving major nation-level collective action problems, and interstate cooperation, which is itself subject to collective action problems and thus cannot solve them, except in a very rudimentary fashion’ (at 7). He argues that ‘global collective action problems cannot be solved – or not very well’ (at 7–8). Note his evaluation: what exists or what can be is only ‘rudimentary’ or ‘not very good’. How can he know that what exists is not precisely what states wish to exist? A fundamental point in Posner's argument is that we ‘cannot solve global collective action problems by creating institutions that themselves depend on global collective action’ (at 34). This glib assertion is patently false: consider as an example the formation of any constitution – constitutions themselves depend on collective action, and they are used to address collective action problems. In domestic society, and in all other social contexts, the creation of institutions always depends on collective action, and always is intended to solve collective action problems. Similarly, Posner later emphasizes that ‘it is the conceit of global legalism that people – ordinary people, government officials, bureaucrats – will obey law even though they would not obey or consent to the international versions of government institutions that we all agree are necessary to make law workable at the domestic level’ (at 128). Here, Posner makes the additional error of extrapolating from the domestic context to the international context without recognizing contextual and teleological differences. The result is the breathtaking assertion that international law, to be effective, requires the same supporting institutions that domestic law has. Furthermore, when Posner specifies that the type of institutions for enforcement of law found in the state are the only adequate ones, he assumes a very idealized and narrow set of institutions available in the state for enforcement of law. A quick survey of comparative politics and comparative constitutionalism would confirm that state institutions are actually quite varied and malleable, and nuanced, even within the narrow category of advanced liberal states. And the literature of social norms, led by Robert Ellickson, shows how in domestic society rules can arise and be stable and effective without formal organizational support.3 Institutional economists distinguish between institutions, which may be formal or informal, and organizations, which are formal. Posner seems to consider that only organizations, of the type found in the state, are sufficient to support international law. An institutional economist surveying the existing field of international law would find a rich variety of institutions, including organizations. The rich literature of international regime theory, pioneered by Robert Keohane, recognizes the critical role of informal institutions in international society. So, while it is true that law requires institutions, or more accurately that certain types of law will be more efficiently made and enforced with certain types of institutions, we cannot move from there to the proposition that the government organizational features found in the state – indeed in Posner's idealized state – exhaust the category of institutions that may be effective to support international law. A social scientist examining international problems of cooperation would not take the top-down approach of asking whether there is a need for a global state that simply replicates the organizational features of the strong national state. Rather, a social scientist would take a bottom-up approach, examining each type of cooperation problem separately, in order to determine which institutional solutions would resolve strategic or transaction cost problems endemic to that problem. Only after examining the range of international problems, and their individual solutions, would a social scientist go on to examine the need for institutional or organizational responses and the potential synergies among the solutions. In this way, we might say that the state, with its wide range of internal subsidiarity, as well as its capacity to enter into international legal arrangements, is only a first approximation of the level at which collective action problems might be addressed. Posner says that the organizational features that are missing at the international level are legislatures, enforcers and adjudicators. And a cursory examination of the broad international legal system will confirm that there is little that looks like the organizational features of a strong state. At the multilateral level, there is no real parliament and no sheriff, and there are few courts of mandatory jurisdiction. And yet, the social scientific question is not whether there are institutions with these labels, or these formal functions, or that look like an idealized set of domestic institutions. State-type institutions are not the exclusive means to resolve collective action problems, even within the state. The social scientific question is whether there is a sufficient institutional structure to have the desired level of behavioural effect. And the appropriate reference is not the idealists’ desired level of behavioural effect, but the level of behavioural effect sought and agreed upon by the states parties. While Posner is obviously right that there is no world government modelled on strong national governments, it is not necessarily so that there is no world government at all. Much depends on what we mean by ‘government’. If we mean a formal set of institutions (including, but not limited to, organizations) that have some degree of legislative, adjudicative, and enforcement power – sufficient to affect behaviour – we already have that in international society. States follow agreed rules regarding legislation through treaty and custom, they adjudicate international law, and they enforce international law. As to mechanisms for legislation, while at the international level most of these require unanimity, all sorts of devices, including package deals, log-rolling, payoffs, and other mechanisms, are available to induce states to agree to rules that may not otherwise be in their narrower interests. While there is indeed generally no sheriff to engage in enforcement activities, there may be and other enforcement While there are few courts of mandatory there are and in some there are other of more or How does Posner know that this set of mechanisms, with existing international law, has no behavioural how does Posner know that this set of mechanisms is not precisely what states to to global collective action problems, given state one can say whether the existing international law institutions are responses to government but nor can that they are without the transaction costs or strategic problems that to remain or that they in to the of states. If Posner has a for a of a particular level of institutional or power to affect it is not in this book. If he has a to know that the level of that exists is to the that states to it is not in this book. So, it is simply to that the institutional structure for international law have the and power of a strong national state in order to be effective. that Posner's question is whether international law can address international cooperation the question is not whether this system looks like a domestic but whether it has the to address international cooperation by and to Posner's are distinct from cooperation How are they as Posner international cooperation compared with domestic cooperation will generally of individual of and and social This is implicit in the of we to do at the state level what is at the state level, and we to do at the international level what is at the international The of actually that cooperation at the international level be from cooperation at the domestic In international cooperation problems that can be by international law the behaviour of governments, and not the behaviour of so it would indeed be if domestic appropriate for use in the behaviour of the same needed to the behaviour of states. the structure of international cooperation and the structure of international society, that we would see institutions for cooperation at the international is no need for a world state to in order to have international law with real social effect. is no reason to that international formal institutions for legislation, and would look like domestic that international government would look like a world state. Posner has no reason to know that the types of institutions in in the international legal system are to address the collective action problems that states wish to He has no reason to know that if states their and to address collective action problems, they would be to do so. He has no reason to know that if states that it would be to additional institutions in order to have more effective law, they would be to do so. At the of this book is Posner's argument that international law is generally ineffective to address international collective action problems. He states (at that that cooperation to solve global collective action problems will be Neither this nor his does much to this theory, and analysis shows that no such For Posner, while world government is it as the of states in the world and the of states in the world seems to be Posner posits that there will be for cooperation as the of states because these states would necessarily be and therefore to public at the level when the level is their may also be social and more international law may for Posner the is that as the of states cooperation is does an of states mean that effective international law is this is central to Posner's it is not and in fact, while it is to be true in some particular it cannot be generally Posner (at that there is no basis for his stating that he that compliance with the of states, this is central to his Indeed, as and have shown in in response to by Posner and compliance with international law could either or with the of states on other For in the of public where the from the public with the of states that cooperation will more as the of states So, there will never be the Posner that compliance with international law generally with the of states. In fact, there may be reason to the effect. Posner posits that for cooperation will arise from a of states. This value of cooperation would make cooperation more not Furthermore, even if we accept Posner's assertion that cooperation generally more with more states, he has no of which effect is the value of cooperation or the of So, even if we to accept Posner's that cooperation generally more as the of states this effect makes it to draw the by that cooperation if Posner right in theory, cooperation with the of states, we have no of the of the or where we are on the might be that the effect he of is very at states, and only at states. this type of there simply is no of In fact, if we follow Posner's approach, is it that the for human cooperation not at the of Elinor the Nobel for 2009 for that they How we to the state with of How is it that the States and formal cooperation among its it Posner argues that there is a to the in the for cooperation to the of cooperation as the of states (at But he also that there is a to the right of the to the for cooperation by the same of states. He has no of the or of these So, even Posner's it is as that the level of cooperation would remain the same, or as it is that it would is no theoretical or empirical basis for Posner's pessimism regarding the social of international law. diplomats just Posner's is that international law has with collective action problems because it what he views as the needed institutions. He no evidence that the global has failed to solve the collective action problems it has desired to in he with a to his the of the European from to The European is an example of states to strong international institutions, and solving a wide variety of collective action problems. Indeed, the European has collective action problems to institutions in order to collective action problems. As the of not all at or to a but to time to for law and institutions. the of the Posner with a has in a strong legal but for him integration the effectiveness of international law in the international system (at is not this point European integration has the capacity for international would be given Posner's view that by the of the does where it of its cooperation in the international system more possible, not way, behaviour in the international system about the utility of the European experience as a to Posner's The critical to which Posner does not is that has precisely what he says cannot be in the international of has of states, and of and exists in the this is all a of and Posner offers no of these would distinguish the European the of these would be a useful to our of the potential of international law and institutions. But Posner simply an between the European experience and the multilateral setting. Furthermore, it may well be that or international law will be the more for cooperation global or multilateral international it depends on a of to each particular is only natural that a of more states, such as the European would see in cooperation, and so would But is it that a of states would not see some in cooperation, and is it that this possibility is to Posner offers no theoretical or empirical evidence that it is as he The general international law with its rules of treaty law, of state is the institutional setting for international law. But where cooperation can be with or with by organizational or other institutional states to do so. This is the of the European of the and indeed of all international to for that as in the European to legislation to address collective action problems, and in with the European it to be that would be useful in the global regime to make more or to against excessive and in with the of the it broad institutional features to on the as its approach to the establishment of institutions. The problem with Posner's is that it rejects on the basis of a and it that legal and institutional solutions to our multilateral cooperation problems are the of human society, with its of our for cooperation the broad of is or or has to determine to at of we have found to do so. it is true, as Posner that international cooperation is not necessarily or to and it is useful to have his response to any idealists who see international law as a for the problems. the argument in this to that international cooperation is or at (at because we simply do not and can never the appropriate institutions. as world there may well be in which states would from international The of The Perils of Global is that its pessimism about the possibility for cooperation, if it could our of and we cannot to the between and