Legal Validity and the importance of epistemology for research on legal norms

iCourts Working Paper Series, no. 268

Forthcoming in Phil Orchard and Antje Wiener, Contesting the World: Norm Research in Theory and Practice

22 Pages Posted: 10 Nov 2021

See all articles by Jakob v. H. Holtermann

Jakob v. H. Holtermann

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Mikael Madsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts; University of Copenhagen - Faculty of Law

Nora Stappert

University of Copenhagen - MOBILE - Center of Excellence for Global Mobility Law

Date Written: November 9, 2021

Abstract

How do we know what ‘counts’ as valid law? Determining legal norms, tracing how their normative meaning may change over time, and how the validity of legal norms is constructed and contested are crucial for IR research into legal norms. In this chapter, we use an interdisciplinary approach that bridges IR, legal philosophy, and the sociology of international law to advance norms research by emphasizing the importance of epistemology for research on legal norms that takes their validity and inherent normativity seriously. Revisiting long-standing debates on legal realism in legal philosophy, we distinguish between two fundamentally different epistemological starting points of research on legal norms: axiological and empirical legal validity. To do so, we draw on some of our previous work on what we called European New Legal Realism, and outline how such a research approach can be applied to empirical studies, including by using both Bourdieusian approaches and the concept of communities of practice. We illustrate our position by the case of normative contestations in and around climate change law and litigation and argue that our fundamental epistemological distinction is significant for how we research legal norms, as it not only determines how scholars identify valid law, but ultimately also whose contestations are made visible in empirical research.

Keywords: legal norms, practice theory, legal philosophy, legal realism, validity, normativity, Bourdieu, communities of practice, interpretive communities

Suggested Citation

Holtermann, Jakob v. H. and Madsen, Mikael and Stappert, Nora, Legal Validity and the importance of epistemology for research on legal norms (November 9, 2021). iCourts Working Paper Series, no. 268, Forthcoming in Phil Orchard and Antje Wiener, Contesting the World: Norm Research in Theory and Practice, Available at SSRN: https://ssrn.com/abstract=3959801 or http://dx.doi.org/10.2139/ssrn.3959801

Jakob v. H. Holtermann (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts

Mikael Madsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

Nora Stappert

University of Copenhagen - MOBILE - Center of Excellence for Global Mobility Law ( email )

Karen Blixens Plads 16
Copenhagen, 2300
Denmark

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