ABSTRACT
Anyone grappling with the theoretical foundations of international law soon arrives at the conclusion that they provide only shaky ground. The difficulty in dealing with the foundations of international law is certainly not only caused by the consequences of social and political change, which at present find typical expression in terms such as ‘denationalization’ or ‘globalization’. Rather, the issue derives from some fundamental problems of the discipline of international law itself.1 Like other academic disciplines, international law has no well established, theoretico-philosophical bedrock capable of acting as the ‘fundamentum inconcussum for the Cartesian project of science, as well as for the enlightenment hope of practical emancipation’ (Kratochwil 1998: 98; see also 2007a: 11). The attempt at finding a set of foundational norms for the ‘community of states’ that would enable us to solve practical problems in world politics might in fact be hopeless. Foundational norms throw little light on real political problems, especially in times of ontological ambivalence and rapid international change. As the source for the validity of international law, the liberal model of
consensus among states has increasingly been met with criticism (Kennedy 1980; Koskenniemi 1989; Carty 1991). The traditional assumption of a basic normative consensus regulating the conduct of states between one another is labelled by critics as inconsistent with reality (for extensive discussion see Paulus 2001: 731-47). As Koskenniemi (1989, 2005) suggests, international law suffers from a fundamental contradiction. On the one hand, it seeks to establish a normative order that curbs the behaviour of states; on the other hand, it has to accept the facts of international politics in order to provide rules relevant enough to be taken into consideration by states. But the inherent opposition between the ‘utopia’ of an international community that follows norms and the ‘apology’ of the political realities of state behaviour prevents international law from providing effective normative constraints (Koskenniemi 2005: 17). Instead, international law becomes a means by which anything can be justified. One strand of thinking that argues against this dilemma in international
law is pragmatism. The American school of pragmatism takes up empiricism by maintaining that knowledge is an instrument for action, and that beliefs
should be judged by their usefulness as rules for predicting experience. If, only a short time ago, pragmatist thought had been widely considered a naively optimistic residue of an earlier liberalism, discredited by the horrors of the Second World War and pronounced dead in philosophy, we now witness a revival of pragmatism (e.g. Dickstein 1998; Nagl 1998; Margolis 2002). Pragmatist arguments are not only increasingly used to reflect the conceptual instruments of international relations, but they also have become a key point of reference in contemporary legal debates (see, for instance, Tamanaha 1997; Lege 1999; Alberstein 2002; Morales 2003; Posner 2003; see also Cochran 1999). The aim of this chapter is to examine what relevance the renaissance of
pragmatism has for legal theory, and to consider the extent to which a return to a pragmatist understanding of law can provide new insights for the analysis and development of international law. I argue that the rehabilitation of pragmatism for the theory of international law does not imply that the old instrumental, realist view can be sold under a new label, according to which international law exerts no normative effect, and power politics is everything. Instead, my point is to bring agency back to the centre of thinking about the international legal order, by perceiving law primarily not as an objectively given system of norms, but as a context-related creative act of problem-solving. This chapter consists of three sections: in the first, I provide a brief over-
view of the legal pragmatist movement. In the second section, I illustrate what pragmatist thinking has to offer to law in general, and how it can enrich the discourse of international law in particular. I review the application of pragmatist thought to international law and politics, referring especially to the ‘policy-oriented jurisprudence’ of the New Haven School. In the final section, I use the example of NATO’s intervention in Kosovo of the late 1990s to discuss how a pragmatist approach may be used to scrutinize the quest for legitimizing humanitarian intervention. I conclude with some remarks on the misconception of the nexus between pragmatism and American foreign policy.
