Today, American and global scholars of international law live in a world indelibly shaped by the New Haven School of international law. Adherents of the school conceive of the ‘international lawyer as post-formalist policymaker’; post- or anti-formalists view international law not as a fixed body of rules but instead as an evolving reflection of political conditions and realities (xiv). One indication of its global influence is that a stream of jurists, not all of whom have passed through Yale Law School or the city of New Haven, where the faculty is based, continue to apply the anti-formalist dictates of the school to their analyses of international law doctrine and problems. Thus, many American scholars, like Oona Hathaway and Harold Koh, do not necessarily ‘consider themselves a part of the School’, but nonetheless focus their scholarly attention on the question of how international legal norms and rules ought to adapt to contemporary geopolitical realities, rather than confine themselves to doctrinal exposition (Oona A. Hathaway, ‘The Continuing Influence of the New Haven School’ (2007) 32 Yale Journal of International Law 553, 554). This is anti-formalism in action. Yet, although many scholars and practitioners regularly apply the tenets of the school, few have reflected upon the historical origins and development of this now-entrenched understanding of legal theory and reasoning. In his magnificent study, Derrig analyses the ideological and methodological commitments of Myres McDougal and Harold Lasswell – the two founders of the school – and the evolution of the school over the mid-twentieth century. The book generally takes a chronological approach; Derrig begins with intellectual portraits of McDougal and Lasswell and then analyses the commitments and evolution over time of the New Haven School, before concluding with a reflection on its historical legacy. Through his extensive reliance on archival sources – notably, the book engages thoroughly with the McDougal and Lasswell papers, which are held at the Yale University archives – Derrig produces sophisticated biographical sketches of the two founders. Derrig's sensible implication is that one cannot understand the New Haven School without looking to the visions of these men. The two jurists shared much in common. Both men fell in with the realist revolution that raged in the United States over the course of the early and mid-twentieth century. Opposed to the categorical and abstract thinking that they associated with late nineteenth-century Anglo-American thought, Lasswell and McDougal viewed law as embedded in a ‘thick social context’ and subordinated to ‘social goals’ (49). In addition, both men developed their understandings of the law in part through their travels in Europe. Lasswell undertook a series of research trips to Europe in the 1920s. In London, he nourished his socialist commitments through his interactions with the Fabian Society, which advocated for democratic socialism in the United Kingdom. McDougal studied at Oxford as a Rhodes Scholar and worked closely with William Holdsworth. McDougal viewed his tutor as espousing a ‘flexible’ and policy-oriented approach to law (44); even as a student, McDougal had become convinced of the dryness and error of nineteenth-century, formalist English approaches to legal reasoning. In other ways, however, the two men were rather different. Although McDougal was a supporter of President Franklin Delano Roosevelt's New Deal and of an active central government, he moved further to the right of the political spectrum over the course of the century. By contrast, Lasswell remained firmly wedded to ‘proletarian socialism’ and the creation of a ‘socialist world society’ (84). During the Cold War, McDougal supported terrible applications of American military might. For example, he argued in favour of the legality of American thermonuclear tests in the Marshall Islands. At the same time, the Federal Bureau of Investigation continued to check in on Lasswell, whom the Bureau viewed as an unrepentant leftist. Evidently, unity of method did not translate into unity of normative belief; the two men foresaw different applications of their shared methodological approach. A second difference was that Lasswell was the principal architect of the New Haven School's psychoanalytic approach towards international law. As a close student of social psychology, Lasswell believed that a free society could only emerge or maintain itself if its citizens attained self-insight and reflected upon their own ‘unconscious impulses’ (105). At a collective level, a free society was one in which public authority had developed ‘limits on its potential for capricious expression’; this self-inhibition could only occur if the society effectively analysed its ‘collective unconscious’ (106). International legal norms and instruments were important tools that could simultaneously express the fundamental character of the United States and her like-minded allies as well as inspire constituencies across the world to more productive self-introspection. Even though McDougal was to become the more famous of the duo, it was Lasswell who developed what Derrig terms the New Haven School's ‘anthropological’ theorisation of the law – that is, a vision of the law as both flowing from and shaping human thought and behaviour (139). In addition to reconstructing the views and, to some extent, inner lives of the school's founders, Derrig successfully contextualises the New Haven School within the larger story of America's relationship with international law. While it is useful to view the New Haven School as distinctive, it is also important to realise that the evolution of the school in many ways reflected broader trends in American legal reasoning and foreign policy thinking. McDougal's substantive claim that the United States ‘needed to defend itself, and that this could only succeed as a function of projecting its values … and its military power’ was by no means an isolated opinion (122). Indeed, his ‘scholarly peers’ widely agreed that international law ought to develop in line with American values (155). Accordingly, the New Haven School went hand in hand with normative theories of American exceptionalism or unilateralism and of liberal internationalism. On the interpretive front, a mass of American lawyers shared the New Haven School's anti-formalist commitments. These substantive and interpretive commitments at least sometimes fed off one another. Derrig intriguingly argues that a powerful country like the United States will generally seek to interpret international law commitments loosely – and thereby prize anti-formalist reasoning – so as to provide itself with maximal interpretive space (161). The triumph of Derrig's study is that he not only recreates the world of mid-century American scholarship on international law, but also develops insights for the broader field of legal theory. His most compelling argument is that it is vital to distinguish between interpretive method and normative orientation. That is, ‘there is nothing mechanically reliable about the politics of a specific interpretive style. The political valences of no element of legal argument can be taken as given by virtue of the method by which it is formulated’ (199). McDougal deployed New Haven School reasoning to justify the expansion of American military might. By contrast, Richard Falk, a celebrated adherent of the school, drew upon the same methodological premises to advocate for ‘restrictive legal interpretations on issues of international law that concerned the scope of application of American law’ (176). Anti-formalism is not necessarily synonymous with progressive politics. The related assertion – that formalism is not synonymous with conservative politics – is more controversial but no less true. To take one example, many scholars today dismiss originalism as a juristic analogue to political conservatism. Yet I have argued elsewhere that Canadians of a range of political affiliations regularly employed originalist reasoning, which often but not always intersect with formalism, to support their political ends during the early twentieth century (Preston Jordan Lim, ‘The Great Depression and Canada's Major Originalist Decade’ (2026) Osgoode Hall Law Journal (forthcoming); ‘The Originalism of F.R. Scott’ (2023) 111 Supreme Court Law Review (2d) 391). Despite the richness of his contribution, there are two matters upon which Derrig might have expanded. I would frame both matters as questions. First, has Derrig, in his successful effort to convey the core tenets of the New Haven School, smoothed out the inconsistencies in McDougal's vision? This is a risk of all forms of biographical writing. Quentin Skinner has famously warned against the attribution to thinkers of a ‘coherence, and an air generally of a closed system, which they may never have attained or even been meant to attain’ (Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3, 17). As a practising lawyer, McDougal understandably articulated positions that were internally inconsistent. In the famous arbitral dispute between Saudi Arabia and Aramco, McDougal formally represented the Gulf state. In truth, it was Aristotle Onassis, a Greek Argentinian tycoon who had partnered with Saudi Arabia to export the state's oil, who had retained McDougal. The professor employed anti-formalist reasoning to argue that a textual reading of the relevant legal provisions masked important indicators of the parties’ shared intentions. He deployed his anti-formalism to argue in favour of the sovereignty of Saudi Arabia and against a capacious reading of Aramco's powers. About a decade later, however, McDougal would represent Texaco following the government of Libya's nationalisation of that company's ‘assets and concessionary interests’ (144). Derrig hypothesises that McDougal approached both cases with the same overarching ideological vision in mind. In the Libyan example, a government allied with the Soviet bloc had expropriated the assets of an American company, whereas Cold War politics did not so neatly intrude into the Saudi-Aramco dispute (144). McDougal could therefore represent the state in one case and the oil company in the other and still hew to his overarching belief in the righteousness of American power. Standing on its own, this explanation seems rather unlikely to me. As Derrig notes, Aramco was a ‘company of great strategic interest to the US government’ (130); it was only through an intellectual somersault that McDougal could have convinced himself that the representation of Saudi Arabia would directly accrue to America's benefit. Here, I view the simplest explanation as the most convincing. Practising lawyers do not have the luxury of hewing to a single interpretive theory or of advancing consistent positions across cases. Their job is to prevail in disputes. Sometimes, effective advocacy will call for a zealous application of realism and a-textualism. Other times, the advocate will need to don formalist garb to seize victory. Derrig's supposition that McDougal advanced the same overall vision across the two disputes may be correct, though I would have liked to see more evidence. It is equally plausible that McDougal did not view his roles in the Texaco and Aramco disputes as intellectually consistent. The second matter flows naturally from my discussion of McDougal's work as a practising lawyer. In a conversation with Derrig, Michael Reisman offered a soft criticism of The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (New Haven, CT: Yale University Press, 1967), a text authored by McDougal, Lasswell, and James Miller. Reisman suggested that the book failed to account for ‘the question of role, the fact that in some roles a lawyer might be called on to play demanded a more “legalistic” perspective than others’ (176). Did Lasswell and McDougal distinguish between the interpretive responsibilities of international lawyers, on the one hand, and of judges of international tribunals, on the other? Should they have? These questions remain important today; after all, one's assessment of the effectiveness or morality of a legal actor depends heavily on one's understanding of his role. While a lawyer ought to be expected to adopt a certain methodological flexibility – drawing on realist or formalist argumentation depending on the needs of the moment – perhaps it is problematic for a judge to display the same methodological looseness. Any sound legal system must feature a sufficient measure of stability, and formalism will generally prove to be a more predictable interpretive method than realism. It is worth noting that McDougal failed in his attempt to embed realist approaches into the 1969 Vienna Convention on the Law of Treaties. In 1968, McDougal served as part of the American delegation to the United Nations Conference on the Law of Treaties, which had assembled to codify the law of treaties. McDougal spearheaded an amendment and argued that legal interpreters ought not to prioritise text over other interpretive modalities and that interpreters should have the untrammelled ability to reconstruct the factual context around a specific legal provision. The Committee of the Whole rejected his amendment by an overwhelming margin (189). The delegates did not accede to McDougal's call for the embrace of realism in the interpretation of treaties. McDougal's crusade for the application of interpretive realism to international law has left a deep impact on legal reasoning in the United States and on the approaches of practising international lawyers in a range of jurisdictions. But his crusade did not result in complete victory, and many jurists remain convinced that only an international legal order built upon formalism can attract the buy-in of states and promote stability and consistency. In his fine study, Derrig reconstructs the evolution of the New Haven School in unprecedented detail, thereby allowing readers to make better sense of the school's modern manifestations and offshoots. It remains for other scholars to study the degree to which these rich theoretical suppositions have been incorporated into the modern, practical operation of the international legal system.
Preston Jordan Lim (Mon,) studied this question.
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