NASH EQUILIBRIUM AS A MEAN FOR DETERMINATION OF RULES OF LAW (FOR SOVEREIGN ACTORS)

http://www.ysu.am/files/Taron_Simonyan-1415705153-.pdf - Published at Journal of Scientific Articles dedicated to the 80th anniversary of the Faculty of Law (YSU), 2013.

Social behaviour and relations, as well as relations of states in international area, are regulated by rules most of which have normative character. The XX and XXI centuries can be characterised also by the fact that the quantity of legal rules and norms, trying to regulate all the above-mentioned relations and behaviour, have being increased, sometimes - in geometric progress. But there are still some relations that are not regulated by written law or clear customary norms, and in order to regulate those relations one needs to determine rules of law in order to have a particular relation regulated in a due manner. And some questions may arise here: where have those rules and norms come from; what are the sources of such rules; have those rules and norms come from other social norms; are they transformed types of other social norms, how can those rules been determined, what methodology can be used for that determination, etc.?   

If it is mostly clear the case in domestic affairs and relations, where a sovereign state provides the norm of law either by the parliament, by the executive power (in Civil Law countries), or by the court (in Common Law countries), a different situation is in international relations, where the main source of international law is the will of states, and the main means, stipulated by the Statute of ICJ, are the forms reflecting that will of states:

a.    international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b.    international custom, as evidence of a general practice accepted as law;

c.    the general principles of law recognized by civilized nations.

The same article provides also the secondary means for the cases, when it is unclear where to find the crystalized will of states:  “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”[2].

In the present research I will concentrated on the issues of determination of rules of international law and a small part of domestic law (mainly in civil law, where the actors are relatively sovereign); both of them will appear in the present research as “law”. I will try to show that a very interesting foundation of the Game theory, the principle or concept of Nash equilibrium, can have a very useful and productive role for a due determination of rules of law, which are difficult to find and apply, and try to make some inferences on the paths of determination of rules of law.

The practice of the past fifty years shows that it is very hard to determine rules of law by only the existing means. We need something more, the missing elements or element, which can provide more opportunities for researchers and practitioners to find and apply the right norm. In this regard Dr. Eyal Benvenisti shows that only the existing means for the determination of rules of international law are not enough and offers another vision: the vision on law from the point of the efficiency: “the doctrine on customary international law is inherently linked to the principle of efficiency. Efficiency justifies the doctrine. Put differently, efficiency is the underlying principle – the grundnorm – of customary international law.”[3]

[1]  Ph.D. in Law, Assisting professor in the Chair of Theory and History of State and Law, Yerevan State University; Lecturer at France University in Armenia; Co-Founder of International and Comparative Law Center (ICLaw-Armenia); Founding Manager of ELL PARTNERSHIP Law Firm; Director of the Armenian Representation of the European Arbitration Chamber; Executive Director of Armenian Bar Association.
[2]  Article 38, 1, Statute of International Court of Justice.
[3] Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency; The Impact of International Law on International Cooperation, Theoretical Perspectives, Cambridge University Press, 2004, pp. 85-116.
[4] Ruhl. J. B., Complexity theory as a paradigm for the dynamical law-and-society system: A wake-up call for legal reductionism and the modern administrative state, Duke Law Journal, volume 45, 1996a, 849-928, p. 906:
[5]  Ruhl. J. B., Law's Complexity, Georgia State University Law Review Symposium Issue, Forthcoming, FSU College of Law, Public Law Research paper No. 313, 885-911, p. 897.
[6] Jeans David Ohlin, Nash Equilibrium and International Law, Cornell Legal Studies Research Paper No. 11-20, Cornell Law Review, Vol. 96, pp. 869-900, 2011, p.869.
[7]  Martin J. Osborne & Ariel Rubinstein, A Course in Game Theory 14 (1994).
[8]  Thomas C. Shelling, The Strategy of Conflict, 3-20 (2nd ed. 1980)
[9]  Joel. P. Trachtman, The Economic Structure of International Law, 4-5, (2008).
[10]  Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005); Eric A. Posner, Do States Have a Moral Obligation to Obey International Law?, 55 Stan. L. Rev. 1901 (2003).
[11]  Jack L. Goldsmith & Eric A. Posner, ibid., p. 184.
[12]  Jack L. Goldsmith & Eric A. Posner, ibid., p. 87-88.
[13]  Jack L. Goldsmith & Eric A. Posner, ibid., p. 32-35
[14]  Jeans David Ohlin, Nash Equilibrium and International Law, Cornell Legal Studies Research Paper No. 11-20, Cornell Law Review, Vol. 96, pp. 869-900, 2011, p.885.
[15]  Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency; The Impact of International Law on International Cooperation, Theoretical Perspectives, Cambridge University Press, 2004, pp. 85-116.
[16]  North Sea Continental Shelf (F.R.G. v. Den./Neth.), I.C.J. Reports 1969, p. 3, at para. 77. The Permanent Court of International Justice first enunciated the doctrine of opinio juris in the Lotus Case (France v. Turkey), P.C.I.J. Reports, Series A, No. 10 (1927) at 28: