In appreciation of McDougal and Lasswell: A Response to Bainbridge and ManneMarch 6, 2013 # 12:56 pm # Armed Conflict, Education, Foreign Policy, Human Rights, Intelligence, International Law, International Organizations, Supreme Court # No Comment
When I took International Law at Virginia, it turned out to be a course not about law but about the legal methodology of Myres McDougal. I hated it. No, I mean I hated it. Incomprehensible mumbo jumbo. So imagine my amusement when I ran across this tidbit in Henry Manne’s oral history:
I went [to Yale Law School on a post-graduate fellowship] and discovered a man named Myres McDougal, who was one of the more famous law professors of the era. He and Harold Lasswell, the famous political scientist, had devised a schemata for using the social sciences to approach law. It was called Law, Science, and Policy. All graduate students were required to immerse themselves in this, if you’ll pardon me, garbage. I say “garbage” because I think there’s only one rigorous social science and that’s economics, and Law, Science, and Policy had no economics in it whatsoever. What they thought they were doing, I don’t know. Today there are no remnants of it around.
Henry’s a lot smarter than I am (I take solace in the fact that he’s a lot smarter than pretty much everybody), so if Henry thought it was garbage I find myself in the best of company.
So, I have to confess that this post made me smile. It is true that the writings of McDougal and Lasswell are not models of clarity– Stunk and White would not be happy. BUT, as one who still uses their works in my International Legal Philosophy class and who has drawn upon their insights in my own writing, I do think that the jurisprudential approach developed by Myres McDougal and Harold Lasswell has made– and continues to make– an important contribution in the field of international law.
So, just a few thoughts.
First, the M-L school was one of the first approaches to international law that sought to counter the claims made by the classical realist international relations scholars– like Hans Morgenthau– that international law doesn’t matter in critical areas. (See, for example, McDougal’s “Law and Power” from 1952.)
Second, McDougal and Lasswell do an excellent job of situating the law-making process within the broader social context. It is here that they connect nicely to a variety of other social sciences. (See, McDougal and Lasswell’s “The Identification and Appraisal of Diverse Systems of Public Order.”)
Third, they posit the importance of “human dignity” to international system. While I am not a fan of their definition of human dignity and think that the way they seek to incorporate it in the process of determining the existence of a rule of international law is incorrect, their willingness to engage the concept is quite useful from an ethical, if not legal, perspective and can aid our understanding of the role of global institutions today. (See, for example, the project that Mark Lagon and I have undertaken to explore human dignity in the context of international institutions and the changing international system.)
Fourth, despite the claim that “[t]oday, there are no remnants of it around,” the McDougal-Lasswell approach gave rise to a great deal of scholarship in international law– with numerous writers using modified versions of the M-L framework. As my late friend (and also former fellow Virginia Journal of International Law board member), David Bederman explained in 2006 in the American Journal of International Law, the approach had a huge impact on the field as it was first developed:
Beginning with his 1952 essay, Law and Power, Myres S. McDougal (with his numerous colleagues, collaborators, and followers) embarked on defining the contours of this new, policy-oriented international jurisprudence. Then, in a remarkable series of articles (many of which presaged book-length treatments), this theory was fully elaborated. So powerful was this new approach — and generally unprecedented and subversive — that it naturally started to draw sharp critiques. (footnotes omitted)
And the influence of this approach has continued over the years. Scholars such as John Norton Moore, Ricard Falk, Florentino Feliciano, Lung-chu Chen and many others have used the insights of the approach. Numerous current treatises and articles use and draw upon McDougal and Lasswell. Indeed, in a recent 1999 symposium issue of the American Journal of International Law on method in international law, an article by Siegfried Wiessner and Andrew R. Willard was titled, “Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity,” and used the McDougal-Lasswell approach. And Oona Hathaway had an excellent article in 2007 entitled “The Continuing Influence of the New Haven School.” And two articles in the January 2012 issue of the American Journal of International Law cite and discuss McDougal and Lasswell.
So, while I don’t recommend McDougal and Lasswell as bedtime reading, I do find their work to have continuing relevance in international law. But if you have not read any of their writings, I recommend beginning with John Norton Moore’s “Prolegomenon to the Jurisprudence of Myres McDougal and Harold Lasswell.” It is the Rossetta Stone for their work!