'The Life of the Law Has Not Been Logic; It Has Been Experience:' International Legal Ethnography and the New Legal Realism
Heinz Klug, Elizabeth Mertz, Shauhin Talesh and Frances Tung, eds., Handbook on New Legal Realism. Edward Elgar, Forthcoming 2021
26 Pages Posted: 14 Sep 2020 Last revised: 21 Jan 2021
Date Written: August 25, 2020
Scholars in law and the social sciences are calling into question the conventional doctrinal account of how international law works. We join this chorus by extolling the virtues of a new method for studying the social life of international law: international legal ethnography. Ethnographic approaches advance the project of the New Legal Realism by explaining legal outcomes through a multidisciplinary study of concrete institutional practices and the subjectivity of legal actors in international justice institutions. A full understanding of why international courts produce influential legal precedent as well as incoherent law and failed prosecutions requires a grasp of both international legal doctrine as well as the organizational culture and quotidian practice of international organizations. International justice institutions are neither insulated from the vagaries of global politics, nor simply reducible to them. Because of their unique and structurally-fragile position betwixt and between national legal cultures, international criminal tribunals have of necessity created a socialization process that inculcates distinctive norms, practices and values among its staff, a process that has identifiable consequences for legal process and outcomes. Our ultimate goal is neither naive faith in the probity of international tribunals, nor a reflexively moral dystopian-ism, but a clear-eyed assessment of both the successes and shortcomings of international justice institutions.
Keywords: international law, international criminal law, new legal realism, ethnography, socio-legal research, international tribunals, international criminal tribunals
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