The New Haven School and Psychologies of Interwar Legal Science

The widespread contemporary understanding of the New Haven School runs as follows. In the 1940s American power rises. Shrugging the formalism of international law, Hans Morgenthau, George F. Kennan and great power politics announce a new paradigm. Myres McDougal senses the zeitgeist the realists have captured and leads a ‘legal’ response. Positivist social science is instrumentally refashioned as ‘policy-science’, the lawyer policy-scientist pitched as the anti-communist power behind the throne. The story tends to be completed by one of two alternative conclusions. For some critics this ends as a story of Cold Warrior lawyers hawking a method skewed to imperial American policy. A cautionary tale of lawyers losing sight of legality in a clash between ‘realism’ and ‘legalism’.  A moral of this critical story tends to be that policy-oriented lawyers were bought out of their vocation by hegemony and neoliberalism. In an alternative narrative, some interpreters distance themselves from McDougal’s reputation as a strident Cold Warrior, but emphasise that the New Haven School bequeathed the field of international law a legacy of useful empirical methods and the admirable figure of the lawyer policy-maker. Many narrators of the second story claim the New Haven School as an intellectual ancestor of an American, post-1990s centre-left policy class.

Only a sliver of the New Haven School’s intellectual history can be engaged with here, and I focus on the fact that one of the bodies of thought that can be described as representing the intellectual origins of the New Haven School – psychoanalysis – challenges the positivist empiricism and methodological objectivity often associated with the school. Lasswell and McDougal sought to scientifically build social order by controlling politics and ideology through law, and their ideas were based on strong conceptions of the irrational, unconscious and emotional bases of social life.

My research has placed Lasswell and McDougal’s formative early scholarship and intellectual lives in an early twentieth century context of widespread interest in science’s relation to psychological interiority. Their earliest published writings and the archival sources I have used to better understand their development of the ideas about law and society that would become known as the New Haven School explicitly engage with and reflect this context. Two important published works illustrate this development. First, Lasswell’s 1935 monograph World Politics and Personal Insecurity was his most complete statement of his psychoanalytic social theory. Lasswell framed the book as an effort to inaugurate a shift in perspective “in many respects parallel to the viewpoint introduced by Marx and Engels into modern social theory”. Marx and Engels had considered as political aspects of society previously treated as depoliticised – the competitive market. In Lasswell’s words, they “marked the recovery of the political standpoint”. He also intended to recover a standpoint – “the self-orientation which is the goal of analysis”. His ambition was to use psychoanalytic techniques for the study of personality and culture to build on Marx and Engels’ explanation of the material factors of social change.

Invoking unconscious psychological forces as determinants of social change alongside dialectical materialism, in World Politics Lasswell argued for the elite-led construction of a world society based on revolutionary socialism. His 1930s social theory would become the core of policy-oriented jurisprudence. As McDougal later noted, it was the substructure of their first collaborative publication, a 1943 Yale Law Journal article, and of the seminars they taught together at Yale Law School in the 1950s.

The densely typed manuscript of several hundred pages from which they taught those seminars, entitled Law, Science and Policy, is the second major publication through which we can trace a thread of ideas in time that can be said to constitute the New Haven School.[1] Like World Politics, the seminars built a world outwards, from the human psyche to collectivities of people, to institutions, law and culture. The largest portion of the materials developed a detailed theory of psychological interiority – what the self was, how it was constituted by relationships with other people, and how such relationships formed patterns of practises that constituted collective life. Policy-oriented jurisprudence drew heavily on current anthropological research to relate this theory of psychology to social practises. Lasswell and McDougal deduced insights about what they thought were universal characteristics of human psychology from legal customs described in anthropological research widely popular at the time like Bronislaw Malinowski’s study of the Tobriand islanders; Robert Lowie’s writing on the state in ‘primitive society’; Karl Llewelleyn and Edward Hoebel’s study of the Cheyenne Indians; and Meyer Fortas and E. E. Evans-Pritchard’s African Political Systems.

At its core, Law, Science and Policy was concerned with what Lasswell and McDougal saw as the relationship between the personal characters of people, and the structures of social order they created and sustained. Building explicitly from Freud’s critique of ‘civilised’ life, and animated by a mid-century spectre of authoritarian social orders, the seminars theorised the internal organisation of a personality that was ‘democratic’, examining influences in childhood and education that moulded such a personality. In this quest for the ‘democratic character’, Lasswell and McDougal were themselves trying to fulfil the task their 1943 Yale Law Journal article had said was the preeminent one of their cultural moment – the cultivation of a rising American elite.

As it is widely understood today, the New Haven School is taken to refer to McDougal’s 1950s foreign policy interventions, or the work of a group of younger international lawyers who began to self-identify as adherents of the school from 1968 onwards. But these are best understood as crystallisations of the phenomenon after the fact. The New Haven School must be understood through Lasswell and McDougal’s interwar sense of the necessity that a generation of modern American leaders be explained to themselves. In so doing, Lasswell and McDougal thought they could use law as an instrument to maintain their conception of a post-war democratic social order.

This can also be understood as a commitment to a widespread early twentieth century interest in examining relationships between modern scientific knowledge, and experiences of psychological interiority. As Law, Science and Policy demonstrates, one manifestation of this epochal preoccupation with science and psychologies of social order was a close relationship between anthropology and psychoanalysis. Widely-reported anthropological accounts of ‘primitive’ societies were closely related to anxieties of life in industrialised societies, supporting analysis of the modern psyche, the ‘civilised’ self.

In policy-oriented jurisprudence, this preoccupation manifested as a desire to use law as an instrument to scientifically control politics and ideology. Social order and value were understood as largely psychological realities – states of mind – that could be engineered through ever greater confrontation and control of unconscious psychological forces. Lasswell and McDougal believed it was possible and necessary to fashion scientific methods capable of productively using the unconscious, unreason and irrationality.


References

[1] Lasswell, Harold and McDougal, Myres. Law, Science and Policy (1958) (Unpublished working papers held at Yale Law Library; copy on file with the author). A published edition of this manuscript that includes additions and edits made by Myres McDougal and Andrew Willard after Lasswell’s death has been available since 1992: Lasswell, Harold and McDougal, Myres. Jurisprudence for a Free Society: Studies in Law, Science and Policy (Kluwer Law International: New Haven Press, 1992).


This text is based on a paper Rián Derrig presented in February 2019 at a conference on “Politics and the Histories of International Law” organised by the Journal of the History of International Law at Heidelberg.

Written by

Rián Derrig is Research Fellow at the WZB Center for Global Constitutionalism.
Website at the WZB

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *