When addressing controversial foreign policy questions, international law scholars in the U.S. persistently frame the debate as a conflict between law and policy. From Vietnam to Afghanistan and beyond, this opposition has dominated and defined the way U.S. legal scholars have used international law to engage with significant foreign affairs at least since the Second World War. In this paper, I argue that the law-versus-policy opposition often leads the debates to a deadlock, constraining and neutralizing the best potential of international law to be both a problem-solving and political tool to respond to novel challenges of international relations. Once the notion of a false opposition between legal and policy reasoning is cleared away, the paper suggests, we will be in a position to appreciate the pragmatist potential and problem-solving possibilities of policy thinking in international law.

By examining exemplary debates through the Cold War and in the aftermath of September 11, the paper demonstrates that pitting law against policy and associating the former with formalism and the latter with pragmatism is misguided. In fact, the post-Realist U.S. international law scholarship freely moves between legal and policy reasoning and abundantly evinces both flexibility in rule-oriented reasoning and rigidity in policy arguments all the while as it reinforces a phony war between law and policy.