Pragmatism as a path towards a discursive and open theory of international law

Abstract

The theoretical foundations of international law have become ever more dominated by the liberal tradition of thought, the ideal of a 'new' ethic of global democracy and human rights. It is nonetheless questionable whether such a pacifist paradigm of international law, with its assumption of consensus as the source and basis of validity of international law, is sufficient to solve present international legal problems. The paper sets out in the first part the idealist tradition of international law, from Kant, through Kelsen, to its reconstitution in the international law doctrine of the Federal Republic of Germany expressed in the textbook Universelles Völkerrecht by Verdross and Simma. Then, in a second part, the liberal legal paradigm is subject to a critique. Instead of speaking of the transformation of classical international law into a cosmopolitan law of a world civil society, a plea is made for a 'new' pragmatic international law, beyond universality and objectivity. From the perspective of pragmatism, law is seen not as an objective, already given norm, but as a contingent act of creative problem solving. What implications this sort of therapy might have and how international law as discursive law might contribute as a problem-solving discipline, is discussed in the final section, in the context of the Kosovo crisis.