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New Legal Realism's Rejoinder

Published online by Cambridge University Press:  30 July 2015

GREGORY SHAFFER
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Abstract

This rejoinder responds to criticisms by Jan Klabbers and Ino Augsberg of ‘The New Legal Realist Approach to International Law’ (Leiden Journal of International Law, Volume 28:2, 2015). The New Legal Realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practised, and changes over time. In contrast with conceptualists, such as Augsberg, legal realists do not accept the priority of concepts over facts, but rather stress the interaction of concepts with experience in shaping law's meaning and practice. Klabbers, as a legal positivist, questions the value of the turn to empirical work and asks whether it is a fad. This rejoinder contends that the New Legal Realism has deep jurisprudential roots in Europe and the United States, constituting a third stream of jurisprudence involving the development of sociolegal theory, in complement with, but not opposed to, analytic and normative theory.

Keywords

conceptualismempiricismlegal positivismnew legal realismpragmatismsociolegal theory
Type
INTERNATIONAL LAW AND ITS METHODOLOGY
Information
Leiden Journal of International Law , Volume 28 , Issue 3 , September 2015 , pp. 479 - 486
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

1 Shaffer, G., ‘The New Legal Realist Approach to International Law’, (2015) 28 LJIL 479CrossRefGoogle Scholar.

2 See T. C. Halliday and G. Shaffer, Transnational Legal Orders (2015); G. Shaffer, Transnational Legal Ordering and State Change (2013).

3 See Holtermann, J. v. H. and Madsen, M. R., ‘European New Legal Realism and International Law: How to Make International Law Intelligible’, (2015) 28 LJIL 211CrossRefGoogle Scholar and their Rejoinder in this issue. Although the American and Scandinavian variants of the realism are distinct, they are allied in their interest in empirical study of how law operates, especially in their focus on how legal meaning develops and stabilizes as in Bourdieian field analysis.

4 I. Augsberg, ‘Some Realism About New Legal Realism: What's New, What's Legal, What's Real?’ (2015) 28 LJIL 457, at 458.

5 W. V. Quine, ‘Two Dogmas of Empiricism’, in W. V. Quine, From Logical Point of View (1980), 20; see also Quine, W. V., ‘Epistemology Naturalized’, in Quine, W. V. (ed.) Ontological Relativity and Other Essays (1969), 69Google Scholar (maintaining that our very thinking is constructed within a context from which it cannot be completely free).

6 For further development of the argument regarding empiricism and pragmatic experimentalism as needed complements, see Nourse, V. and Shaffer, G., ‘Empiricism, Experimentalism and Conditional Theory’, (2014) 67 SMU Law Review 101Google Scholar.

7 See Augsberg, supra note 4, at 460.

8 Ibid., at note. 20.

9 Ibid., at 460.

10 Ibid., at 462.

11 Ibid., at 465.

12 Cohen, F. S., ‘Transcendental Nonsense and the Functional Approach,’ (1935) 35 Columbia Law Review 809CrossRefGoogle Scholar.

13 See Augsberg, supra note 4, at 467.

14 See Klabbers, J., ‘The Redundancy of Soft Law’, (1996) 65 Nordic Journal of International Law 167CrossRefGoogle Scholar, at 168, and Klabbers, J., ‘The Bridge Crack'd: A Critical Look at Interdisciplinary Relations’, (2009) 23 International Relations 119CrossRefGoogle Scholar.

15 Klabbers, J., ‘Whatever Happened to Gramsci? Some Reflections on New Legal Realism’, (2015) 28 LJIL 469CrossRefGoogle Scholar at 469.

16 Ibid., at 474.

17 For a discussion on differentiating New Legal Realism from empirical legal studies, noting their overlaps and distinctions, see Mertz, E. and Suchman, M., ‘Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism’, (2010) 6 Annual Review of Law and Social Science 555Google Scholar.

18 See Klabbers, supra note 15, at 476 and note 32.

19 Ibid., at 475.

20 Ibid., at 476.

21 See Halliday and Shaffer, supra note 2; Shaffer, supra note 2. See also Shaffer, G., ‘How the WTO Shapes Regulatory Governance, Regulation & Governance’, (2015) 9 Regulation & Governance 1CrossRefGoogle Scholar.

22 See Klabbers, supra note 15, at 477.

23 Nourse, V. and Shaffer, G., ‘Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory’, (2009) 95 Cornell Law Review 61Google Scholar.