Hans J. Morgenthau on the Limits of Justiciability in International Law

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Oliver Jütersonke 181

Oliver Jütersonke* Graduate Institute of International Studies, Geneva, Switzerland

Introduction In contemporary writings on international law, Hans J. Morgenthau plays a minor role. Considered the founding father of the Realist School of International Relations (IR), he is generally taken as exemplary for why the discipline of international law has been cast by the wayside by political science IR scholarship, and why, it seems, it is also doing badly in contemporary United States foreign policy. The rule-scepticism inherent in the power politics approach of Morgenthau meant that international law no longer stood a chance among a foreign policy community grappling with the aftermath of a second World War and the onset of conflict on the Korean peninsula. Jurists still had plenty of theories of international law to chew on, but Morgenthau’s theory about international law was one that was hard to swallow for any jurist, though easy to understand and digest by policy-makers and the wider public. Over the past half-century, Realism – and, more recently, Neorealism – has undoubtedly been one of the most influential approaches to the study of international relations, and, according to many, continues to be so, especially in the United States. Realism remains, following Legro and Moravcsik, “the primary or alternative theory in virtu- ally every major textbook and article addressing general theories of world politics, particularly in security affairs”. What is more, it seems all but impossible to enter any type of debate on the Realism in IR without the name Morgenthau appearing sooner or later. This is as certain as the mention of Pablo Picasso when talking about Cubism, or Arnold Schönberg when the subject is twelve-tone composition. Author of one of the most widely used textbooks over the past half century, in the form of Politics Among

* Oliver Jütersonke is completing his Ph.D. thesis on Hans J. Morgenthau at the Graduate Institute of International Studies in Geneva, Switzerland. He is Research Coordinator at the In- stitute’s Programme for Strategic and International Security Studies (PSIS). Thanks go to Andrea Bianchi, Peter Haggenmacher, Martti Koskenniemi, Keith Krause, Kenneth W. Thompson and Michael C. Williams for their comments and support. 1 Throughout this article, “International Relations” (IR) will be capitalised when the academic field is referred to, as opposed to the phenomenon of international relations — the substance of IR – as such. Jeffrey W. Legro and Andrew Moravcsik, “Is Anybody Still a Realist?”, International Security Vol. 24, No. 2 (1999), pp. 5-55, at 5.

Nations, Morgenthau is undoubtedly one of the central figures in the disciplinary history of International Relations. John Vasquez goes as far as saying that “[w]ith the advantage of hindsight, there can be no doubt that Morgenthau’s work [Politics Among Nations] was the single most important vehicle for establishing the dominance of the realist paradigm within the field [of IR]”. Stanley Hoffmann writes: “If our discipline [of IR] has any founding father, it is Morgenthau”, and, most recently, Michael C. Williams has reiterated that “no assessment of the development of International Rela- tions can overlook the importance of Morgenthau in the intellectual evolution of the field, and his role in placing Realism at the centre of that evolution”. It is consequently all the more odd that Morgenthau’s intellectual origins have thus far not been given adequate attention, and are yet to be fully unravelled. For just as Arnold Schönberg’s move away from tonality was a long-term intellectual process, Morgenthau’s characteristic position revolving around “the concept of interest defined in terms of power” was also one that evolved gradually. In the late 1920s, Morgenthau wrote his doctoral dissertation in the field of international law, under the supervision of Karl Strupp in the Faculty of Law at the University of Frankfurt am Main. This article will argue that in order to arrive at a comprehensive understanding of Morgenthau’s thought, one has to go all the way back here, to his dissertation on the judicial function in the international realm, and to the criticism with which it met. Morgenthau’s journey from Frankfurt to Chicago, via Geneva, Madrid and Kansas City, cannot be sketched

Hans J. Morgenthau, Politics Among Nations. The Struggle for Power and Peace (New York: Alfred A. Knopf, 1948). The first edition was reprinted eight times before a second, revised and enlarged edition came out in 1954 (reprinted six times), a third in 1960 (reprinted eight times), a fourth in 1967 (reprinted three times), and a fifth in 1973. Kenneth W. Thompson then post- humously published a sixth edition in 1985, a brief edition in 1992, and now a seventh edition in 2005. John A. Vasquez, The Power of Power Politics: From Classical Realism to Neotraditional- ism (Cambridge: Cambridge University Press, 1998), p. 36. Stanley H. Hoffmann, (1977). “An American Social Science: International Relations”, Daedalus Vol. 106, No. 3 (1977), pp. 41-60, at 44. Michael C. Williams, The Realist Tradition and the Limits of International Relations (Cam- bridge: Cambridge University Press, 2005), p. 82. Noteworthy attempts have been Niels Amstrup, “The ‘Early’ Morgenthau. A Comment on the Intellectual Origins of Realism”, Conflict and Cooperation, Vol. 13, No. 3 (1978), pp. 163- 175; Christoph Frei, Hans J. Morgenthau: An Intellectual Biography (Baton Rouge: Louisiana State University Press 2001), first published in German as a dissertation at the University of Bern, 1993; Martti Koskenniemi, “Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations”, in Michael Byers (ed.), The Role of Law in International Politics. Es- says in International Relations and International Law (Oxford: Oxford University Press, 2000), pp. 17-34; and idem, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 (Cambridge, Cambridge University Press, 2002).