What’s Your School?
I’ve been grading exams this week and reading various student explanations of how a decision on an international legal issue (defining torture) will vary depending on whether the decision-maker has a positivist or naturalist approach to international law. Of course, I could have asked my students to consider other “schools” of international legal theory — e.g., the New Haven School, championed by scholars such as Myres McDougal and Michael Reisman, or the New Stream scholarship of Martii Koskenniemi and David Kennedy. Moreover, I could’ve asked my students to draw on the whole set of “international law and . . .” scholarship, whether it’s Anne-Marie Slaughter’s work integrating international relations theory with international law or my colleague Jeff Dunoff’s work with Joel Trachtman advocating an international law and economics approach. And that’s just the tip of the iceberg.
My question though is how much of this matters to the international law practitioner? I know when I worked at the State Department there was little discussion of international legal theory or reference to how it might influence the outcome of particular cases or problems. Now, of course, I think about theory much more. But I do wonder how often lawyers in practice rely on it, or even consider how the analysis of a particular problem they are facing might vary depending on which “school” of international law they apply. Put another way, I’d be interested in knowing whether those readers who practice international law rather than teach it, self-identify with a particular school of thought, and if so, which one?