Legal Realism and International Law
IN: International Legal Theory: Foundations and Frontiers, Jeffrey L Dunoff and Mark A Pollack (eds), (Cambridge University Press, 2021, Forthcoming)
19 Pages Posted: 14 Aug 2018 Last revised: 28 May 2020
Date Written: August 13, 2018
This chapter presents the legal realist approach to international law. It is in five parts. Part 1 provides a brief background of the genesis and core attributes of legal realism, breaking down legal realism into three interrelated dimensions—behavioral, critical, and pragmatic—that explain law’s development and practice. Part 2 presents how American legal realism migrated into and influenced international legal theory, starting with the realism of Hans Morgenthau and policy science of Myres McDougal, then turning to the development of transnational legal theory with Philip Jessup and the rise of global administrative law with the proliferation and deepening of international institutions. Part 3 presents the two principal dimensions of new legal realism—empiricism and pragmatism. The new legal realist approach builds from significant developments in the social sciences and opportunities and demands for transnational problem-solving in light of increased transnational social connectedness and international institutionalization. The section defines new legal realism positively in terms of the interaction of such internal legal and external extra-legal factors as reason and power, legal craft and empirics, and legal tradition and demand for change, and negatively in terms of its foils—on the one hand, a new formalism that relies on rationalist presuppositions and, on the other hand, a postmodernism that eschews social science and pragmatist engagement. Part 4 assesses the strengths and challenges of legal realism. Its strengths are the opening of the black box of international lawmaking and practice, which frequently reveals structural tilts in favor of powerful actors, combined with a pragmatic drive for international law adaptation and reform. Its challenges, to which this section responds, are the risks of scientism and losing sight of what makes law distinctive—namely doctrine and legal normativity. Part 5 addresses the critical place of legal realism for understanding and responding to the purported crises of international law today.
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