Tuesday, December 8, 2020

Giovanopoulou on Pragmatic Liberalism and US Foreign Policy

Afroditi Giovanopoulou, a doctoral candidate, Columbia University, has posted Pragmatic Legalism: Revisiting America's Order after World War II, which is forthcoming in the Harvard International Law Journal 62 (2021):

How should we think about the role of law in the making of American foreign policy? Scholarly accounts typically emphasize that the United States led the way for the establishment of a legalized international order at the end of World War II, centered around the norms of international human rights and those of the law of war. More recently, historians have argued that, in fact, a much more skeptical attitude towards international law prevailed in the postwar period. This was in large part due to the reigning influence of international relations realism in the postwar foreign policy establishment. This article argues that postwar foreign policy was defined neither by an unyielding fidelity to a norms-based international order nor enduring realist dismissal of this 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 policy makers, 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. Uncovering the history of pragmatic legalism produces significant consequences for how we understand the past and present of American foreign policy. It suggests that there was not a singular law-centric mode that prevailed among American foreign policy makers over the course of the twentieth century, as has been frequently assumed. The vocabulary of pragmatic legalism also shows the breadth of alternative possibilities for lawyers anxious for ways forward today. Today, a legal approach reminiscent of the tradition of international relations realism is vying to displace the previously moralizing language of American foreign policy. Neither of these two competing modes- moralizing internationalism or skeptical disengagement- is the inevitable future of American foreign policy, or American legal internationalism more broadly.

--Dan Ernst