My remarks are confined to a broad account of specifically U.S. approaches to international legal theory; they do not have a wider American focus. Another self-imposed limitation is that I shall only address instrumental approaches to public international law--in other words, theories which aim at justifying, guiding, or influencing state action. I shall not deal with critical theory in its various guises, even though this is a prominent and influential strand of contemporary U.S. legal philosophy.
Generally, critical theory does not engage in guiding or influencing governmental action and the practice of international law: it is principally a critique of that practice and its consequences which "reject[s] reliance upon visions both of State interests that we too often take to propel doctrine and of the law that we take to restrain statesmen." (1) As such, critical theorists may be seen to fall within a U.S. intellectual tradition that the historian Joseph Ellis has described as "refugees from the mainstream." (2)
To an outsider, the history of dominant U.S. instrumental theories of international law reflects political perceptions within the United States itself--not simply in terms of how it should see itself and its role in the world, but also how it should see itself internally. By the latter, I mean prevailing conceptions of domestic political concerns, principally those that implicate domestic democratic and constitutional concerns. I must necessarily paint with a broad brush to throw matters into relief, and my outsider's understanding/misunderstanding of the relevant issues may be very different from a domestic view. Also, my account is incomplete and unduly schematic as I wish to focus solely on three salient periods in U.S. history, namely, the immediate post-revolutionary period; the period between World War II and the end of the Cold War; and the notion of hegemony in contemporary approaches.
As preparation for this panel, Professor Reisman posed a few questions which he suggested we might care to address. I shall focus on two:
(1) Is international legal theory of practical importance? Why?
(2) Why are American international lawyers so concerned with, even obsessed by, theory?
The answer to the second question depends, at least in part, on an answer to the first. An answer to both provides a context for understanding U.S. approaches to international legal theory, which in turn provides one perspective from which to reflect upon the comment Secretary of State Rice made yesterday regarding the United States' "respect for and sponsorship of international law throughout its history."
To address the first question: international legal theory is of importance to practice because it may provide a blueprint for practice. One function of instrumental variants of legal theory is to formulate or guide the practical application of law. This is essentially a Kantian notion. (3) In practical affairs, we need a relatively abstract template to structure an understanding of our actions and their presumed effect. We need a conceptual matrix to make sense of and manipulate data: legal theory can thus allow us to understand the world through the prism of law. Accordingly, theory is indispensable to practice.
Professor Reisman also posed the question of why...