The New Haven School: American International Law by Ríán Derrig
Rian Derrig’s book is simultaneously thought-provoking, timely, and transcendent. It offers an intellectual history of the New Haven School of International Law, situating its founders—Harold Lasswell and Myres McDougal—within their biographical, intellectual, and political contexts, and charts the evolution of an argumentative style and methodology in American foreign policy over the last century. As such, it is a valuable resource for the legal academic interested in understanding an American approach to international law.
As an international legal theory, the New Haven School[1] is generally considered an anti-formalist, inter-disciplinary and policy-oriented approach, with commitments to transnational legal process, transnationalism, and the normative project of advancing human dignity.[2] At first blush, this seems like an attractive proposal. But, as Derrig states, certain ideological beliefs have accompanied this approach in practice – the assumption that America has a unique responsibility to project its power and value system globally while using and shaping international law to those ends, and the presumption that American actions are always benevolent and bona fide notwithstanding their negative effects. Derrig contends that this made the New Haven School an “incubator” for a style of legal argumentation that justified American actions abroad (p. 2). If international law could be perceived as a “creature” of the United States, its accusatory or impeaching force could not be turned against American foreign policy, even when it involved hegemonic or imperial acts (p. 2).
The critical implications of this observation shadow the rest of the book, folding into an aspirational note flagged at the start. Derrig seeks to equip the reader with the tools to challenge these kinds of arguments. “This challenge will be more effective” he writes, “if it is advanced from an understanding of how those arguments became what they are, where they collected the valences and parts with which they present themselves today” (pp. 2-3).
‘The New Haven School’ thus goes on to give the reader a historical understanding of the methodologies and political contexts that lent the School an argumentative force. Derrig accomplishes this goal with thorough research. While drawing on a variety of primary and secondary sources, he brings together a rigorous commitment to biographical accuracy, a scrupulousness with source and detail, and expertly woven subtextual narrative. To wit, he invokes at various points interviews with the founders, letters from Harold Lasswell to his parents, lectures by influencing scholars, and even Myres McDougal’s passenger ticket for his journey to Oxford as a Rhodes scholar. Notwithstanding these minute details, he remarks that “although for most of the book individuals are foregrounded in the narrative, and personal archives and correspondence are heavily relied upon, in substance the agency of those individuals is not a central concern” (p. 3).
This is a helpful prefatory note before the reader turns to Chapters 1 and 2, which trace the biographies of Lasswell and McDougal respectively, as it anchors the reader to the insight that both men were simply “creatures of a context” (p. 3). As Derrig repeatedly emphasizes, Lasswell and McDougal were adept at integrating the scholarly influences of their time and seizing opportunities for the propagation of their ideas and methods. But their innovations consisted more in synthesis than creation. This perspective appears to condition Derrig’s work, because his chapters seem more concerned with the founders’ roles in building the School than their individual legacies within it.
Accordingly, Derrig runs through Lasswell’s and McDougal’s upbringing, academic trajectories, and career progressions. He does not frequently draw explicit comparisons, but the narrative suggests similarities and differences between the founders that explain their natural affinity for one another. Both men grew up in rural America amidst economic and social transformation. They both hailed from community and service-oriented Protestant families and had fathers who played important roles in society while being socially conscious and politically active. They were also both greatly influenced by their educational experiences and respective stints in Europe.
Derrig highlights how Lasswell emerged with disciplinary and methodological insights drawn from sociology, social psychology, and philosophical pragmatism. By mapping his variegated scholarly journey across Europe, Derrig anticipates Lasswell’s inevitable transformation into an internationalist socialist, with a strong commitment to collective goals and a methodological lens that allocated analytical importance to collective psychologies, culture, identity, and social change.
Simultaneously, he depicts McDougal’s intellectual formation through a stimulating childhood, traditional Oxonian legal training, and doctoral studies at Yale Law School. By the time McDougal commenced his academic career in America, he had developed an “anti-metaphysical and anti-absolutist” approach to law (p. 57). Derrig notes that although McDougal was enchanted by philosophical pragmatism and legal realism, he was also “repelled by the corrosive scepticism that seemed to haunt realists” (p. 50). His anti-formalist approach to law as a decision-process needed a method that would place values and social change at the center of legal change.
Collaboration was thus the inescapable conclusion of McDougal’s fortuitous meeting with Lasswell at the University of Chicago in 1935. Lasswell’s psychoanalytic tools and avowed focus on social goals supplied the normatively directed, imaginative, and collectivist methods of achieving social change that McDougal had been seeking.
Chapter 3 turns to the product of this collaborative effort - a 1943 co-authored article in the Yale Law Journal titled ‘Legal Education and Public Policy: Professional Training in the Public Interest’. Derrig claims that this served as a kind of manifesto for the School by delineating its core commitments, methodologies, and vision of the lawyer as a policy maker. He uses the article’s themes to construct a dialogue with preceding works of the founders, critical responses by their contemporaries, and scholarly works succeeding them. In so doing, he underscores his thesis that Lasswell and McDougal were not so much inventing as they were astutely riding an academic and political wave—or “channeling a moment” (p.92).
With this article as a launchpad, the book pivots towards more concrete engagement with the School’s impact on American academia, legal practice, and foreign policy. But while dealing with this denser content, Derrig uses technical jargon and a style that makes his work less accessible to both the law student and academics unfamiliar with the nuances of American jurisprudence or more traditional doctrinal positions in international law. This approach is curious given that the author frequently references criticisms faced by the School for composing arguments in a complex and esoteric style.
Derrig maintains that despite being the School’s intellectual stalwart, Lasswell played a much smaller role in its institutional uptake. The latter half of the book therefore reflects how Lasswell—but not his ideas and influence—receded into the background, while McDougal took center stage as the pragmatic practitioner. He attributes this to the fact that many of the School’s most influential arguments were made by McDougal, possibly because Lasswell’s more left-leaning political orientation attenuated the institutional reception to his participation in state projects. McDougal’s argumentative versatility, in contrast, was welcomed within the ranks of America’s foreign policy corps.
Chapters 4 and 5 dive into arguments made by McDougal and his collaborators. Derrig observes that McDougal’s “pre-disposition towards collaboration” (p. 63) prompted many partnerships over the course of his career, with scholars in sociology, anthropology, urban planning, and later, many of his students. This propensity for collaboration proved to be professionally fruitful but also had some personal costs. An anecdote recounts how McDougal’s candidature for the Doctor of Civil Law Degree in Oxford was prejudiced by a portfolio of co-authored publications.
Derrig explains that the choice to parse through McDougal’s contributions is a useful exercise because it helps understand McDougal’s influence in international law and the New Haven School, it provides concrete instantiations of an abstract theoretical framework, and it demonstrates how the New Haven School supplied legal arguments to justify American foreign policy. He thus takes the reader through McDougal’s expanded notions of self-defense and humanitarian intervention, his justifications for thermonuclear weapons testing in the Marshall Islands and for the Cuban blockade, and his positions in the Aramco and Texaco arbitrations. These examples are well chosen, because they effectively showcase how McDougal’s liberal realist view of the law lent his arguments a flexibility that enabled a defense of both government and corporate rights (in Aramco and Texaco respectively), as well as expanded concepts of public order and self-defense when serving American economic and military interests.
The final chapter reinforces the evaluative upshots of the preceding parts of the book – that the School was inspired by domestic anti-formalist trends, that it frequently served to defend American foreign policy interests abroad, and that it ultimately offered a malleable methodology to effect social change through the law. This chapter traces how the New Haven School was carried forward by McDougal and his students, chiefly through an interpretive framework that offered a “porosity of legal concepts and the merits of interpretive space” (p. 192). The result was that even critics of the School had to concede to the advantages of its endorsement of contextuality and open-ended interpretation. At the same time, the School unapologetically defended American foreign policy interests and an American vision for a liberal internationalist order. This is exemplified through the United States’ approach to the negotiation of the Vienna Convention on the Law of Treaties and McDougal’s arguments in support of the United States in the Nicaragua case before the International Court of Justice.
Yet, even as he concludes with these vignettes, Derrig stops short of resolving certain questions. The book demystifies some of Lasswell’s psychoanalytical methods, but they largely remain obscure. Moreover, by the end of the book, these methods seem to have been disregarded without any explanations.
The reader is also left unsure about the School’s ability to appeal to audiences outside of America. Derrig frames positivism as the foil to the School’s anti-formalism. He notes that McDougal and Lasswell, and the positivist Hans Kelsen (whom Lasswell encountered in Vienna “were two sides of the same coin. They developed different answers to the same problem, the problem of building a new way of seeing and using law after the modern realization of the inner life.” (p. 192). Simultaneously, he alludes to the TWAIL scholar BS Chimni’s observation that the School can be adapted and refashioned into a “progressive New Haven approach” (p. 163). But for the School to prevail against or, even resist subsumption by the positivist traditions of continental Europe and the TWAIL frameworks of the global south, it needs to distinguish itself by providing methodologies and goals that can reliably foster stability and fairness. Derrig’s illustrations and analyses cast doubts in this regard.
Finally, Derrig’s book has explanatory power, because he demonstrates how a certain style of argument became mainstream in American foreign policy. This is a well-timed contribution to academic scholarship, because it comes as America forges a particularly fragile relationship with the international legal system. But Derrig refrains from pronouncing on whether this perplexing tension between the social goals of the School and the hegemonic interests it has served in practice, is a result of defects internal to its anti-formalist methodology, or simply idiosyncratic ventures of its practitioners. Hence, the reader must discern on her own, whether the current political moment is a reaction to the School’s transnational emphasis, or really an unavoidable, albeit distorted continuation of its distinctive inter-disciplinary, policy-oriented methodology, and permissive tradition of American exceptionalism.
Overall, I found The New Haven School meticulous and edifying. But the unresolved questions left me wondering whether the School can have utility only in connection with a very specific kind of practice of international relations, one that is premised on the types of ideological assumptions that guide American foreign policy. Perhaps, though, this was an unsurprising ending, given the book’s pithy subtitle – ‘American International Law’.
[1] Beyond this point, the book will be referenced in this article as “The New Haven School”, while the School as an approach will be referred to as “the New Haven School” or “the School”. Emphasis on capitalization of ‘the’, when referencing the book.
[2] Harold Hongju Koh, The Yale School of International Law, YJIL pp. 3 and 5.