Document Type

Article

Publication Date

2021

Publication Title

Harvard International Law Journal

Issue

62

First Page

325

Abstract

In recent years, persistent questions regarding America’s role in the world have prompted scholars to revisit the history of World War II and its aftermath, when the foundations of our contemporary international order were arguably laid. Scholarly accounts of the period typically assert that the United States led the way for the establishment of a legalized international order, centered around the norms of international human rights and those of the law of war, and urge that the United States remain true to the same principles in the twenty-first century. More recently, scholars mistrustful of calls for a robust, militarized humanitarian agenda have argued that a much more dismissive attitude toward international law prevailed at the time, in large part due to the reigning influence of international relations realism. Their accounts dovetail with a steadily growing skepticism toward international law in today’s foreign policy establishment. This Article argues that postwar foreign policy was defined by neither an unyielding fidelity to a norms-based international order nor an enduring realist dismissal of that project. Rather, what defined the postwar period was an eclectic, variegated and situational approach to law and regulation: a mode of “pragmatic” legalism. Pragmatic legalism consciously developed as a reaction to the legal sensibilities of prewar foreign policymakers, who promoted the codification of international norms and the judicial resolution of international disputes. It also developed as a result of larger transformations in American legal thought, notably the rise of sociological jurisprudence and legal realism. The history of pragmatic legalism reveals the possibilities for renewal in contemporary foreign policy, which currently oscillates between moralizing internationalism and skeptical disengagement. A broader array of legal possibilities is imaginable, including one that evokes the pragmatic spirit. This history also calls attention to the limits of such efforts at renewal. The pragmatic style, once progressive and experimental, eventually helped fuel regressive projects internationally. As in the past, so too today, legal renewal alone can hardly resolve the pressing questions surrounding America’s global presence.

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