International Legal Scholarship at the Millennium

The beginning of a new journal is always a moment of great promise and expectation, and the start of The Chicago Journal of International Law is no exception. The decision to launch an international law journal at this time no doubt reflects both a widespread understanding that many problems traditionally considered domestic have important international dimensions, and the increasing prominence and diversity of international legal norms and institutions. In this sense, the start of this journal reflects good news about the state of international law. But there is something disquieting about starting a new international law journal with an inquiry into the problems of international legal scholarship. While it is often useful for an academic discipline to self-consciously examine its own understandings, a Symposium dedicated to this topic may signal an underlying weakness in the discipline. The purpose of this short essay is to explore the unsettling juxtaposition presented by the launch of this journal and its Symposium theme: is there a connection between the good news about international law that prompts the start of this journal, and the bad news about international law scholarship that prompts this specific Symposium? I Any discussion of the problems with international legal scholarship presupposes an understanding of the purposes and goals of this scholarship. These scholarly purposes and goals, however, are neither unitary nor static. Rather, at any one time, there are different forms of scholarship, and scholarship can play different roles at different times. Moreover, the purposes and goals of scholarship are and should be legitimate foci of academic debate. Nevertheless, it is often possible to generalize about dominant trends in legal scholarship at a particular time. For example, we can understand domestic law scholarship in this century to have moved through several discrete phases, including moves from Langdellian formalism to Legal Realism to Legal Process to various contemporary movements, including law and economics, critical legal studies and feminist legal thought. Harold Koh argues that international legal scholarship has undergone a very similar progression.' But there is another way to understand developments in international legal scholarship. For much of this century, and particularly in the decades following World War II, international law was a marginalized discipline. Political realists such as E.H. Carr, George Kennan and Hans Morgenthau, forcefully argued that power, rather than law, governed the international realm.2 They criticized the "legalistmoralist" tradition of American thought for naively attempting to transfer a domestic conception of legal order into the anarchic international system.3 At its heart, the realist critique challenged the relevancy-indeed, the very reality-of international law. In response, over the last few decades, much international law scholarship was at least implicitly dedicated to establishing the reality and relevance of international law. While the story of these efforts has been well-chronicled elsewhere,' the salient point here is this scholarship's success. International law scholars no longer feel compelled to justify their chosen area of study. As a result, international law scholarship today is heterogeneous, in terms of both goals and methodologies. However, notwithstanding this healthy diversity, international law scholarship today most typically consists of prescriptive or normative claims about how international legal issues should be addressed and resolved. As this is the most common form of international law scholarship-and as this prescriptive quality most sharply distinguishes legal scholarship from that of other disciplines-in what follows, I shall focus on this branch, without meaning to slight other important forms of international law scholarship. Efforts to prescribe-to solve specific legal problems-are deeply dependent upon the particular definition of the problem to be solved. …