Lauterpacht's Method

Abstract

Hersch Lauterpacht's method for international legal science, which he calls progressive interpretation, is reconstructed here. This method takes as its start- ing point the claim that international law should be functionally oriented towards two ideals - the establishment of peace between nations and the pro- tection of fundamental human rights. It is the need to anchor his idealism to the 'realities of international life' (e.g. state practice) which provides the basis for his important, and highly plausible, method for the study of international law. That is, progressive interpretation articulates the international community's on-going attempts to express preferred normative goals which are immanent within the day-to-day workings of the international legal system. International legal doctrine is the institutional expression of the international community's funda- mental normative commitments, it is not simply that which is considered ideally just. Alongside a reconstruction of Lauterpacht's method, two substantive con- tributions are made. The first traces the connections between progressive interpretation and more recent legal philosophers who adopt an interpretivist methodology, such as Ronald Dworkin. The second reconsiders Lauterpacht's qualified constitutive theory and shows how his method reveals it to be a plaus- ible legal doctrine, despite a relative lack of supporting state practice, and in the face of considerable academic criticism.