institution, including potentially the market, ought to be used in any particular context To be sure, the government processes that might be used are not necessarily efficient in monetary or monetized terms: they might not pass a cost-benefit analysis that has regard only for monetary or monetized benefits. But this cannot be the measure of validity, as there are many values that are not readily monetizable but are worthy of expression, either in private conduct or in olitical action. 18 They are also worthy of being traded for monetary or monetized values, and law and economics as politically doctrinaire or ignorant of non-monetized values, and we argl wect such"trade" is presumptively efficient. We emphasize these points to reach out to those who rei that any dogma or ignorance is a political prejudice that is not necessitated by economic analysis ItSe While we believe, as explained below, that L&e analysis has much to say about questions of institutional choice, the actual decisions are, of course, made through political processes. It is in this sense that politics is the leading mechanism, as it still retains kompetenz-kompetenz to determine the border between its domain and that of the market, and the methods we examine do not question this priority of the political over the economic C. Positivism and the Denigration of International Law A fundamental tenet of law and economics is its positivism, meaning its emphasis on empiricism and analysis of the world as it is, as opposed to a"normative perspective on the world as it should be. The line between positive and normative economics is often unclear, as positive nalysis is often motivated by or used to support a normative critique. 19 While positivism is the sine qua non of social science, international lawyers have long done battle with a brand of international legal theory that is called positivist. Many international lawyers criticize this international legal positivist approach, as it tends to be skeptical of the effectiveness of international law, and has often enshrined state sovereignty as a kind of summum bonum. Those critical of international legal positivism might see little reason to expect economic positivist methodologies to illuminate international legal issues. Again, however, we think this objection to the use of l&e methodologies lacks force. In particular, it confuses the positivism of law and economics with other forms of positivism To the extent that international lawyers confront positivism, it is often in the context of Westphalian20 positivist view of the world: a world of billiard ball states that interact only with 18"Maximum national income, however, is not the only goal of our nation as judged by policies adopted by our govermnment-and government's goals as revealed by s stigle& cosT 9. at 459. See also AvINaSh DIXIT. THE MAKING OF ECONOMIC POLICY: A TRANSACTION-COST POLITICS PERSPECTIVE(1996) 19 See Daniel A Farber, Positive Theory as Normative Critique, 68 S. CAL L. REV. 1565 (1995).Indeed, many deny a strong distinction between positive and normative discourse arguing that a strong distinction takes inadequate account of the relationship between the observer and the observation See, e.g., ROGER TRIGG, UNDERSTANDING SOCIAL SCIENCE: A pHILOSOPhICAL INTRODUCTION TO THE SOCIAL SCIENCES (1985) 20 Leo gross, The Peace of Westphalia, 1648-1948, 42 AM. J. INT LL. 20(1948)“institution,” including potentially the market, ought to be used in any particular context. To be sure, the government processes that might be used are not necessarily efficient in monetary or monetized terms: they might not pass a cost-benefit analysis that has regard only for monetary or monetized benefits. But this cannot be the measure of validity, as there are many values that are not readily monetizable, but are worthy of expression, either in private conduct or in political action.18 They are also worthy of being traded for monetary or monetized values, and such “trade” is presumptively efficient. We emphasize these points to reach out to those who reject law and economics as politically doctrinaire or ignorant of non-monetized values, and we argue that any dogma or ignorance is a political prejudice that is not necessitated by economic analysis itself. While we believe, as explained below, that L&E analysis has much to say about questions of institutional choice, the actual decisions are, of course, made through political processes. It is in this sense that politics is the leading mechanism, as it still retains kompetenz-kompetenz to determine the border between its domain and that of the market, and the methods we examine do not question this priority of the political over the economic. C. Positivism and the Denigration of International Law A fundamental tenet of law and economics is its positivism, meaning its emphasis on empiricism and analysis of the world as it is, as opposed to a “normative” perspective on the world as it should be. The line between positive and normative economics is often unclear, as positive analysis is often motivated by or used to support a normative critique.19 While positivism is the sine qua non of social science, international lawyers have long done battle with a brand of international legal theory that is called positivist. Many international lawyers criticize this international legal positivist approach, as it tends to be skeptical of the effectiveness of international law, and has often enshrined state sovereignty as a kind of summum bonum. Those critical of international legal positivism might see little reason to expect economic positivist methodologies to illuminate international legal issues. Again, however, we think this objection to the use of L&E methodologies lacks force. In particular, it confuses the positivism of law and economics with other forms of positivism. To the extent that international lawyers confront positivism, it is often in the context of the Westphalian20 positivist view of the world: a world of billiard ball states that interact only with one 18 “Maximum national income, however, is not the only goal of our nation as judged by policies adopted by our government--and government’s goals as revealed by actual practice are more authoritative than those pronounced by professors of law or economics.” Stigler, supra note 9, at 459. See also AVINASH DIXIT, THE MAKING OF ECONOMIC POLICY: A TRANSACTION-COST POLITICS PERSPECTIVE (1996). 19 See Daniel A. Farber, Positive Theory as Normative Critique, 68 S. CAL. L. REV. 1565 (1995). Indeed, many deny a strong distinction between positive and normative discourse, arguing that a strong distinction takes inadequate account of the relationship between the observer and the observation. See, e.g., ROGER TRIGG, UNDERSTANDING SOCIAL SCIENCE: A PHILOSOPHICAL INTRODUCTION TO THE SOCIAL SCIENCES (1985) 20 Leo Gross, The Peace of Westphalia, 1648-1948, 42 AM. J. INT' L L. 20 (1948) 7