What is Empirical in Empirical Studies of Law? A European New Legal Realist Conception
Forthcoming in Retfærd, Vol 39 (4), 2016
iCourts Working Paper Series No. 77
30 Pages Posted: 26 Oct 2016 Last revised: 6 Apr 2017
Date Written: October 25, 2016
European New Legal Realism (ENLR) is an empirical legal research programme which combines insights from Weber, Ross and Bourdieu with contemporary empirical approaches to international law and international courts. This article addresses certain recurrent mistakes about what ENLR’s commitment to being empirical implies. First, it emphasizes that empirical ENLR is firmly situated on the Sein-side of the Sein/Sollen divide. Against the claims of both critics and some proponents of empirical approaches, it further denies that this should restrict the ENLR program to pure quantitative approaches. On the contrary, empirical legal studies can and should include interpretive and qualitative approaches to law. Although this necessarily implies an acknowledgment of the internal normative aspect of law, the study does not thereby itself have to be normative. By restricting ENLR to an analysis of an empirical concept of legal validity it can account fully for the internal normative aspect while itself remaining descriptive and empirical.
Keywords: European New Legal Realism, Empirical Studies of Law, Legal Realism, Sociology of Law, Epistemology, Max Weber, Alf Ross, Pierre Bourdieu
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