2 Geo. Mason L. Rev. (Student Ed.) 53 (1994-1995)
Retaliation: The Genesis of a Law and the Evolution toward International Cooperation: An Application of Game Theory to Modern International Conflicts; Radinsky, Marla

handle is hein.journals/gmulr2 and id is 59 raw text is: 1994]

RETALIATION: THE GENESIS OF A LAW AND THE
EVOLUTION TOWARD INTERNATIONAL COOPERATION:
AN APPLICATION OF GAME THEORY TO MODERN
INTERNATIONAL CONFLICTS
INTRODUCTION
Retaliation is often regarded as a threat to the goal of coopera-
tion.1 However, historical lessons illustrate some ways in which retalia-
tion can lead to eventual cooperation. Over time, retaliation or the
threat of retaliation has encouraged tribes, individuals, and nations to
enter into agreements and treaties, to establish and codify new rules of
law, and to allow enforcement of such rules and agreements. Lex ta-
lionis, the law of retribution as defined in the Old Testament, limited
retaliation to punishment of the same extent.' Although lex talionis
was useful in restraining violence,3 today it nonetheless provides the
optimal illustration of an inefficient rule. After the inception of this
eye-for-an-eye rule, the heads of the feuding tribes cooperated, thus
reducing bloodshed within their respective groups and preventing clan
warfare.5 History reveals that these utility-maximizing' individuals
contracted out of this rule of retaliation by attempting to buy out the
victims' right to retaliation with pecuniary compensation.' Eventually,
the threat of harsh retaliation led these tribal heads to establish a sys-
' See, e.g., ROBERT FISHER & SCOTT BROWN, GETTING TOGETHER 197-202 (1988) (sug-
gesting that a retaliatory strategy on relationship building could lead to a downward spiral of
actions and reactions).
2 See PIETRO MARONGUI & GRAEME NEWMAN. VENGENCE: THE FIGHT AGAINST INJUSTICE
22 (1987).
1 See FRANCESCO PARISI, LIABILITY FOR NEGLIGENCE AND JUDICIAL DISCRETION 35 (2d ed.
1992).
The rule of lex talionis was inefficient for the community at large in the sense that it
promoted conduct that wasted resources. Although the rule helped to curb violence, it nonetheless
encouraged unnecessary killings. Richard A. Posner suggests that an inefficient rule such as this
would be commonly labeled unjust. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 27
(4th ed. 1992).
' See PARISI, supra note 3, at44-45.
' This assumes, of course, that the leaders of these feuding tribes were seeking to maximize
their utility (happiness, pleasure, satisfaction). Such an assumption is warranted since a tribal
leader would surely want to prevent the loss of its members (who by contributing to the workload
increase utility).
' See PARISI, supra note 3, at 39, 45.

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