Are We (Americans) All International Legal Realists Now?

Abstract

Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean for the broader, global project of international law?

This chapter takes the claim seriously and explores the ways in which American international law may in fact be tinged with legal realism. It explores how a number of intellectual trends—American jurisprudential legal realism, post-World War II international relations scholarship, utopian strands in American foreign policy thinking, and U.S.-specific foreign relations law—converged to bring a series of specific methods or attitudes to the forefront in American approaches international law. Perhaps provocatively, this chapter argues that all the major schools of American international law—New Haven, International Legal Process, Transnational Legal Process, Law and Economics, International Relations and International Law, and others—have picked up these methods, attitudes, or approaches—enough to warrant labeling all of them as essentially “legal realist.”

And it explores how legal realism translates into four noticeable trends in American approaches to international law:

(1) a focus on norms rather than rules,

(2) a focus on process rather than doctrine,

(3) a focus on institutions and power rather than substantive rules, and

(4) an emphasis on pragmatism and practicality.

Keywords: international law, legal realism, United States, international relations, international legal process, U.S. foreign relations, norms, rules