Obituary: Professor Myres McDougal
Saturday 09 May 1998
The ideas underlying the policy science, or "Yale Law School", approach to international law were of themselves challenging and controversial. They were made the more so by the powerful and combative style with which McDougal advanced them, whether orally or in writing. In the 1960s and 1970s it had only to be suggested that he would intervene at an international law meeting - whether at the Royal Institute of International Affairs in London, or the American Society of International Law in Washington - for the hall to be filled to overflowing by those who relished the battle that was bound to follow, as McDougal turned his guns on the opposition.
The opposition ranged from the "realpolitik" critics of international law (such as Hans Morgenthal and George Kennan), to those who insisted upon the traditional virtue of rules and neutrality (such as Sir Gerald Fitzmaurice), and to those who accepted the relevance of policy but rejected the need for a rigorous methodology for its application (such as Wolfgang Friedmann).
McDougal's pugnacious style on matters legal was matched by Southern courtesy on matters personal. He was adored by his students and respected and liked even by those who profoundly disagreed with him. Knocking on the door of his office at Yale Law School one would hear the shouted command "Come!" (never "Come in"). When one had entered the room, an imposing figure wearing a green eye visor could eventually be discerned among the thousands of books which filled all available space. No student ever felt rushed. Indeed, the lucky ones might be invited to the Graduate Club to continue the discussion over dinner.
He was an inspired teacher whose deeply original ideas have irrevocably altered the way we think about international law. No international lawyer of the last 50 years has been so much written about by others. McDougal was also an intensely loyal man - those of whom he approved continued to receive his vigorous support over the years.
McDougal's output was prodigious. He constantly battled against failing eyesight, but, with his eye visor, huge magnifying glass and carefully selected younger associates, kept the problem at bay. He began his legal writing in the field of property law, before turning to international law, and specifically to jurisprudence, the law of the seas, treaty law, space law, human rights, legal education and the use of force. Law and Minimum World Public Order (written with Florentino Feliciano, 1961) and "Theories About International Law: prologue to a configurative jurisprudence" (written with Lasswell and Michael Reisman, in the Virginia Journal of International Law, 1968) are two outstanding, and typical, examples.
In the 1980s he collaborated increasingly with Michael Reisman, who had succeeded him as Professor of International Law at Yale. Beyond the immediate circle of those with whom he wrote, there are today many international lawyers around the world whose approach to their discipline is broadly sympathetic to McDougal's legal philosophy.
He had an active practice in international law, often working together with Reisman. He appeared before the International Court of Justice on behalf of the United States in litigation brought by Nicaragua. But he was perhaps viewed as too much wedded to his own approach ever to be appointed to the International Law Commission or the international judiciary.
His influence was above all as a teacher and he knew that his former students, who never lost touch with him (and, indeed, felt intellectually bound to each other), were now in top teaching, diplomatic and public service positions all over the world. No fewer than three of his former students sit upon the Bench of the International Court of Justice (the judges from the United States, Japan and the United Kingdom). His 90th birthday celebration at Yale was a great incoming from all the continents of those who felt indebted to him.
His scholarship was widely acknowledged. The footnoting of his writings was a treasure trove of scholarly reference and acerbic comment. A classical scholar as a young man, he continued to find apposite Greek aphorisms with which to underline points made in his footnotes. If his footnoting represented traditional scholarship of the highest order, his texts were written in a unique style, with a novel vocabulary rooted in the social sciences.
Many international lawyers - and especially European lawyers - admired the scholarship but deplored the vocabulary McDougal employed, complaining that it represented a barrier to the understanding of his analysis and ideas. For McDougal, the use of unfamiliar language, with its references to "decision makers" and "participants" and "community expectations", was precisely to express ideas about the international legal process that were indeed different from the ideas carried by the more traditional vocabulary.
It was necessary to find a vocabulary to express his perception of international law as a dynamic process available to a variety of international actors to achieve specified social goals. The old vocabulary wouldn't do, because the terms themselves often represented the expression of ideas that McDougal believed misconceived. In truth, his vocabulary was comprehensible with a minimum of effort.
What undoubtedly did make his work less accessible, from the stylistic point of view, was the heavily methodological suprastructure. People were keen to read his views on, for example, treaties or the high seas: they did not want to have to plough through pages on the process of authoritative decision, the various authority functions, strategies, etc. But McDougal believed that only adherence to the methodology would lead to the correct analysis.
Accessibility aside, the substance of his work generated enormous interest and considerable controversy. It was fiercely attacked by those who believed that the methodology on which it was based was so open textured that it would allow of any result at all, whereas "law" has to be determinate. His critics also contended that the policy science approach too often served to promote US interests, which were dignified as "community values" to which decision-making should be directed.
This perception was confirmed in their eyes by the robust support McDougal gave to the action of the US administration in such matters as the intervention in Grenada and support to the Contras in Nicaragua. But his objectives were far from traditionally conservative. Senator Eastland (Democrat, Mississippi) said in reference to McDougal's views on the UN Charter: "Mr McDougal was a schoolmate of mine. He is a very distinguished professor at Yale University, and I think a very misguided liberal." He campaigned for US ratification of human rights treaties; for the Ibo cause in Nigeria; for sanctions in Southern Rhodesia; for women's rights; for pluralism.
He thought of himself as an unreconstructed Southerner; an American patriot; and an Oxford man. A Rhodes scholar as a young man, nothing gave him keener pleasure than his honorary fellowship in 1982 of his old college, St John's.
Myres Smith McDougal, international lawyer, legal philosopher and educationalist: born Burtons, Mississippi 23 November 1906; Sterling Professor of International Law, Yale Law School 1958-75 (Emeritus); married 1933 Frances Lee (one son); died New Haven, Connecticut 7 May 1998.
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