Myres S. McDougal, the leader of the New Haven School of International Law (NHSIL), advanced a comprehensive and iconoclastic conception of international law and its goals, one whose continuing influence is well-known today: a visceral rule-skepticism that even his least fervent disciples would never renounce. McDougal’s conception of international law and its goals is fundamentally different from the normativist view of Hans Kelsen, which has been and continues to be enormously influential throughout continental Europe, particularly in France. In the portion of his 1953 course at The Hague Academy of International Law devoted to Kelsen’s canonical Legal Technique in International Law, McDougal said that the jurist’s function as “a responsible interpreter of the policy commitments embodied in legal prescriptions and procedures,” and the jurist’s status as a “skilled specialist” of the intimate workings of such prescriptions and procedures, prohibits the jurist from limiting himself to the mere analysis of the “logical interrelations among legal propositions.” He called for jurists to extend their roles “to the further tasks of inquiry into and advice about the possible effects upon overall community values of the various alternatives that the legal forms afford.” In addition, he imposed on legal scholars the responsibility to “identify or invent and to recommend the prescriptions, organizations, and decisions” that would converge in the effective development of an international “law of human dignity.” By replacing the Kelsenian analytical distinction between “lawful and . . . unlawful” with a different programmatic distinction— between “a law promoting human indignity or a law promoting human dignity” —the NHSIL was uniquely equipped to fulfill the function that McDougal ascribed to all useful jurisprudential theory: “the formulation and the establishment of an international law of human dignity.” It is no surprise that this approach, diametrically opposed to the Kelsenian spirit, has had the effect of distancing the NHSIL from the central concerns of French doctrine of public international law, which is “entirely concerned with the internal functioning of the legal system,” and the interrelationships that bind together the various elements of the international legal order.
Legal Formalism Meets Policy-Oriented Jurisprudence: A More European Approach to Frame the War on Terror,
Me. L. Rev.
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