Between Equal Rights: A Marxist Theory of International Law

By China Miéville | Go to book overview

Chapter Two
Dissident Theories: Critical Legal Studies and
Historical Materialism

1. Beyond pragmatism

The traditional canon of international legal theory has been exposed, with all its shortcomings: its endlessly recursive and fruitless counterposition of positivism and naturalism, and the intractable choice between apologetic policy-approach and utopian rules-approach theories. The modern ignoring of systematic theory can be seen as a defensive reaction to this state of affairs: international legal theorists after the Second World War 'turned to pragmatism, a modern consequentialist philosophy that emphasized institutional process, functional progress, or rule centered doctrinal specificity, while denying the relevance of coherent abstraction'1—that is, of jurisprudence itself.

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1
Purvis 1991, p. 83. Purvis sees most of those modern international legal theorists who do attempt to grapple with more fundamental questions of theory, such as McDougal, Kelsen, Schwarzenberger et al., as 'conceptual pragmatists' who reacted to the failure of 'unreflective pragmatism' and 'sought to turn abstraction into functionalism', using 'pragmatic functionalism' (p. 84). Much of Purvis's taxonomy here is questionable: he wrongly characterises Kelsen as a sceptic, for example (p. 84). His historical claim, that these more systematic theorists represented a response to the failure of 'pure' pragmatism, is also unsustainable: far from emerging 'from the efforts of the post-war scholars', Kelsen's theories were first elaborated in Hauptprobleme der Staatsrechtslehre in 1911 and reformulated in 1925 with the first publication of Allgemeine Staatslehre. Similarly, Morgenthau's scepticism was articulated in his doctoral thesis written before the 1930s (Eckstein 1981, p. 646). However, Purvis's broader point that the modern textbook writers were exercising a woolly pragmatism in part born of the recursive nature of classical jurisprudence of international law can be maintained.

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