Love It or Hate It, but for the Right Reasons: Pragmatism and the New Haven School's International Law of Human Dignity
Saberi, Hengameh, Boston College International and Comparative Law Review
Abstract: This Article presents a novel understanding of pragmatism in the New Haven School of international law. The New ffaven Jurisprudence is wrapped in layers of mystification and the scant accounts of its pragmatism in the literature are either entirely mistaken or only partially helpful, betray a vernacular or truncated understanding of pragmatism, and fail to engage with the internal, epistemic structure of the policy-oriented jurisprudence. In response, this Article uncovers a contradictory form of foundationalist pragmatism in the Yale Jurisprudence in a peculiar relationship between its contextualist and problem-solving promises and its unreflective normative commitments to a set of postulated values of human dignity. In doing so, it foregrounds a "foundationalist antifoundationalism" and its crippling impact on the pragmatist promises of policy-oriented jurisprudence. Against the worn-out accusations of the New Haven Jurisprudence of U.S. imperialism or disguised affinity with natural law, understanding its foundationalist pragmatism offers a new appreciation of both the genius of Yale's policy-oriented approach and the promises of pragmatism for policy thinking in international law.
In 1971, Richard Falk-himself an astute student of the New Fla- ven School of international law (NF1S)-predicted that if by 2010 the world would have overcome "the fundamental challenges of war, pov- erty, pollution, and oppression," an historian seeking to "recreate the intellectual roots of such a positive outcome" could not hope to do bet- ter than to explicate the "clarity of vision, seriousness of commitment, and extent of impact ..." of the life and work of Professor Myres McDougal.1 With 2011 already behind us, the historian is hardly so lucky as to be asked for an account of the intellectual roots of a world without war, poverty, pollution, and oppression. Despite this, Professor Myres McDougaPs place in the history of American international law, as Falk aptly put it, "tower [s] so far above his contemporaries as to be vir- tually invisible. "2
Like most things in the altitudes of invisibility, however, the policy- oriented approach to international law that was born and flourished in New Haven3 remains, seven decades later, persistently enveloped in lay- ers of mystification. In its own time, it lived a life of celebrity scholar- ship-attracting some and repelling many others-in which fiery rebut- tals trumped meaningful engagements with critics. In its afterlife, it earned little more than either overwhelmingly negative or positive ac- counts of what it was not, or underwhelming appraisal and apprecia- tion of what it was. Reactions to the NHS's policy approach run the gamut from critiques that target its theoretical inadequacies or follies and the threat posed to the rule of law if policy and law were to be so closely integrated,4 to laudatory commendations of the NHS's own as- sertive stance as a comprehensive jurisprudence for a new world public order of human dignity,5 to enchantment with the NHS's methodologi- cal heresy of weaving policy into the fabric of law without actually adopting that methodology in any identifiable form or substance.6
This Article aims to break through the by-now solidified walls of misperception around Yale's policy-oriented jurisprudence, dispel some of the accepted wisdom about its foundations and nature, and present a more nuanced, dispassionate, and plausible understanding of its epistemological commitments and methodological claims. For all their differences, critics and admirers of the New Haven Jurisprudence agree about at least one fundamental assumption: that New Haven's policy-oriented approach and its avowed antifoundationalism are con- sistent with the teachings of American pragmatism. This Article chal- lenges the accepted wisdom about pragmatism in the NHS and offers a more accurate reading of its antifoundationalism. It does so because the peculiar relationship between pragmatism and human dignity in the NHS not only defined the fate of its career during and after the Cold War, but continues to bear crucial implications for the life of in- ternational law in the United States. …