New Legal Realism and International Law

doi:10.1017/CBO9781139683432.009

8 - New Legal Realism and International Law

from Section III - global institutions and the changing roles of judges and lawyers

Published online by Cambridge University Press: 05 May 2016

Gregory Shaffer

Edited by

Heinz Klug and

Sally Engle Merry

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Gregory Shaffer: Affiliation:
University of California at Irvine School of Law
Heinz Klug: Affiliation:
University of Wisconsin School of Law
Sally Engle Merry: Affiliation:
New York University

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Summary

To tap the spirit of a new legal realist approach to international law, let us begin with two quotations from two nonlegal sources that capture two defining aspects of a new legal realism. The first is from a letter written by Anton Chekhov (1977, 627) to Alexey Suvorin in 1892: “Let her first say what is, and only then I will listen to what one can and must do.” Those words parallel a famous statement of Karl Llewellyn (1931, 1236), a leader of the original American Legal Realism, who maintained: “The argument is simply that no judgement of what Ought to be done in the future with respect to any part of law can be intelligently made without knowing objectively, as far as possible, what that part of law is now doing.” Llewellyn thus called for “the temporary divorce of Is and Ought for purposes of study.” The statement of Chekhov, a doctor, is particularly to a field – that of law and legal scholarship, and particularly international law and international legal scholarship – which is dedicated to prescriptions, yet spends far too little time on diagnoses. Let us call the Chekhovian approach the empirical strand of new legal realism.

The second complementary slant comes from the writer James Baldwin, who, disillusioned with American racism, left the United States in 1948 for France, where he lived much of his remaining life as a cosmopolitan outsider seeing things anew. Baldwin is quoted as saying: “The purpose of art is to lay bare the questions which have been hidden by the answers.” Let us paraphrase that statement to reflect a central, pragmatist tenet of new legal realism: a purpose of engaging in research in a new legal realist vein is to uncover issues and possibilities to which otherwise we are ignorant, to which otherwise we are blind because we are caught in a single way of viewing a situation. That is the creative aspect of a new legal realism, and it is uncovered through a critical, experimental approach to learning. Let us call the Baldwinian component the Deweyan pragmatist strand of new legal realism.

Type: Chapter
Information: The New Legal Realism
Studying Law Globally
, pp. 145 - 159

DOI: https://doi.org/10.1017/CBO9781139683432.009 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

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References

Alfieri, Anthony V. 1999. “Prosecuting Race.” Duke Law Journal 48(6): 1157–1264.Google Scholar

Baldwin, James. 1962. “The Creative Process.” In Creative America, 17–21. New York: Ridge Press.

Busch, Marc, Reinhardt, Eric, and Shaffer, Gregory. 2008. Does Legal Capacity Matter? Explaining Patterns of Protectionism in the Shadow of WTO Litigation. Geneva: International Centre for Trade and Sustainable Development.

Busch, Marc, Reinhardt, Eric, and Shaffer, Gregory. 2009. “Does Legal Capacity Matter? A Survey of WTO Members.” World Trade Review 8(4): 559–577.Google Scholar

Chekhov, Anton. 1977. “Anton Chekhov to Alexey Suvorin, December 3, 1892.” In The Portable Chekhov, edited by Yarmolinsky, Avrahm, 626–627. New York: Penguin Books.

de Been, Wouter. 2008. Legal Realism Regained: Saving Realism from Critical Acclaim. Stanford, CA: Stanford University Press.

Dworkin, Ronald. 1986. Law's Empire. Cambridge, MA: Belknap Press of Harvard University Press.

Erlanger, Howard S., Garth, Bryant, Larson, Jane E., Mertz, Elizabeth, Nourse, Victoria, and Wilkins, David B.. 2005. “Is It Time for a New Legal Realism?” Wisconsin Law Review 2: 335–363.Google Scholar

Ewick, Patricia, Kagan, Robert, and Sarat, Austin. 1999. “Introduction: Legacies of Legal Realism: Social Science, Social Policy and the Law.” In Social Science, Social Policy and the Law, edited by Ewick, Patricia, Kagan, Robert, and Sarat, Austin, 1–38. New York: Russell Sage Foundation.

Farber, Daniel A. 2001. “Toward a New Legal Realism.” Chicago Law Review 68: 279–303.Google Scholar

Fisher, William, Horwitz, Morton, and Reed, Thomas, eds. 1993. American Legal Realism. New York: Oxford University Press.

Flood, John. 2007. “Lawyers as Sanctifiers: The Role of Elite Law Firms in International Business Transactions.” Indiana Journal of Global Legal Studies 14(1): 35–66.Google Scholar

Halliday, Terence, and Shaffer, Gregory, eds. 2015. Transnational Legal Orders. New York: Cambridge University Press.

Hudec, Robert E. 1993. Enforcing International Trade Law: The Evolution of the Modern GATT Legal System. Salem: Butterworth Legal Publishers.

Kennan, George. 1951. American Diplomacy. Chicago: University of Chicago Press.

Klee, Paul. 1920 [2013]. “Creative Confession [Schöpferische Konfession].” In Creative Confession and Other Writings, edited by Gale, Matthew, 7. n.p.: Tate Publishing.

Komesar, Neil K. 1994. Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy. Chicago: University of Chicago Press.

Kritzer, Herbert M. 2010. “The (Nearly) Forgotten Early Empirical Legal Research.” In The Oxford Handbook of Empirical Legal Research, edited by Cane, Peter and Kritzer, Herbert, 875–896. New York: Oxford University Press.

Lacarte-Muro, Julio, and Gappah, Petina. 2000. “Developing Countries and the WTO Legal and Dispute Settlement System: A View from the Bench.” Journal of International Economic Law 3(1): 395–401.Google Scholar

Lawrence, Charles L. 1987. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” Stanford Law Review 39(2): 317–388.Google Scholar

Leiter, Brian. 1999. “Legal Realism.” In A Companion to Philosophy of Law and Legal Theory, edited by Patterson, Dennis and Edmundson, William A., 261–279. Malden, MA: Blackwell.

Leiter, Brian. 2005. “American Legal Realism”. In The Blackwell Guide to the Philosophy of Law and Legal Theory, edited by Golding, Martin P. and Edmundson, William A., 50–67. Malden, MA: Blackwell.

Llewellyn, Karl. 1931. “Some Realism about Realism: Responding to Dean Pound.” Harvard Law Review 44(8): 1222–1264.Google Scholar

Macaulay, Stewart. 2005. “The New versus the Old Legal Realism: ‘Things Ain't What They Used to Be.’” Wisconsin Law Review 2005(2): 365–454.Google Scholar

Matsuda, Mari J. 1989. “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method.” Women's Rights Law Reporter 11(7): 7–10.Google Scholar

Mertz, Elizabeth. 2005. “Challenging Translations: New Legal Realist Methods.” Wisconsin Law Review 2005(2): 482–489.Google Scholar

Miles, Thomas J., and Sunstein, Cass R.. 2008. “The New Legal Realism.” Chicago Law Review 75(1): 831–851.Google Scholar

Morgenthau, Hans J., and Thompson, Kenneth W.. 1963 [2006]. Politics among Nations: The Struggle for Power and Peace. Rev./expanded ed. Boston: McGraw-Hill Higher Education.

Nourse, Victoria, and Shaffer, Gregory. 2009. “Varieties of New Legal Realism: Can a New World Order Spur a New Scholarly Agenda?” Cornell Law Review 95: 61–137.Google Scholar

Nourse, Victoria, and Shaffer, Gregory. 2014. “A New Legal Realism: Empiricism, Experimentalism, and Conditional Theory.” Southern Methodist University Law Review 14: 101–142.Google Scholar

Posner, Eric A. 2009. The Perils of Global Legalism. Chicago: University of Chicago Press.

Posner, Richard A. 1990. The Problems of Jurisprudence. Cambridge, MA: Harvard University Press.

Quine, W. V. 1969. Epistemology Naturalized from Ontological Relativity, and Other Essays. New York: Columbia University Press.

Quine, W. V. 1980. “Two Dogmas of Empiricism.” In A Logical Point of View, 2nd ed., rev., 20–46. Cambridge, MA: Harvard University Press.

Ratner, Steven, and Slaughter, Anne-Marie, eds. 1999. “Symposium on Method in International Law: A Special Issue of the American Journal of International Law.” American Journal of International Law 93: 291–301.Google Scholar

Rosenne, Shabtai. 1984. Practice and Methods of International Law. London: Oceana Publications.

Rubin, Edward. 1996. “The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions.” Harvard Law Review 109(6): 1393–1438.Google Scholar

Schachter, Oscar. 1977. “The Invisible College of International Lawyers.” Northwestern University Law Review 72(2): 217–226.Google Scholar

Schlegel, John Henry. 1995. American Legal Realism and Empirical Social Science. Chapel Hill: University of North Carolina Press.

Shaffer, Gregory. 2001. “The World Trade Organization under Challenge: Democracy and the Law and Politics of the WTO's Treatment of the Trade and Environment Matters.” Harvard Environmental Law Review 25(1): 1–93.Google Scholar

Shaffer, Gregory. 2005a. “Can WTO Technical Assistance and Capacity Building Serve Developing Countries?” Wisconsin International Law Journal 23(4): 643–686.Google Scholar

Shaffer, Gregory. 2005b. “Power, Governance, and the WTO: A Comparative Institutional Approach.” In Power in Global Governance, edited by Barnett, Michael and Duvall, Bud, 130–160. New York: Cambridge University Press.

Shaffer, Gregory. 2009. “Developing Country Use of the WTO Dispute Settlement System: Why It Matters, the Barriers Posed.” In Frontiers of Economics and Globalization, Vol. 6: Trade Disputes and the Dispute Settlement Understanding of the WTO: An Interdisciplinary Assessment, edited by Hartigan, James C., 167–190. Bingley, UK: Emerald Group Publishing.

Shaffer, Gregory. 2013a. “Comparative Institutional Analysis and a New Legal Realism.” Wisconsin Law Review 2013(2): 607–628.Google Scholar

Shaffer, Gregory. 2013b. Transnational Legal Ordering and State Change. New York: Cambridge University Press.

Shaffer, Gregory, and Ginsburg, Tom. 2012. “The Empirical Turn in International Legal Scholarship.” American Journal of International Law 106(1): 1–46.Google Scholar

Shaffer, Gregory, and Meléndez-Ortiz, Ricardo, eds. 2011. WTO: The Developing Country Experience. New York: Cambridge University Press.

Shaffer, Gregory, and Nordstrom, Hakan. 2008. “Access to Justice in the World Trade Organization: The Case for a Small Claims Procedure?” World Trade Review 7(4): 587–640.Google Scholar

Shaffer, Gregory, Ratton-Sanchez, Michelle, and Rosenberg, Barbara. 2008. “The Trials of Winning at the WTO: What Lies behind Brazil's Success?” Cornell International Law Journal 41(2): 383–501.Google Scholar

Singer, Joseph William. 1988. “Legal Realism Now.” California Law Review 76(2): 465–544.Google Scholar

Slaughter, Anne-Marie, and Ratner, Steven. 1999. “The Method Is the Message.” American Journal of International Law 93: 410–451.Google Scholar

Suchman, Mark C, and Mertz, Elizabeth. 2010. “Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism.” Annual Review of Law and Social Science 6: 555–579.Google Scholar

Tamanaha, Brian Z. 1999. Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. New York: Oxford University Press.

Trubek, David M. 2008. “Transcending the Ostensible: Some Reflections on Bob Hudec as Friend and Scholar.” Minnesota Journal of International Law 17(1): 1–6.Google Scholar

Trubek, David M., Dezalay, Yves, Buchanan, Ruth, and Davis, John R.. 1994. “Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas.” Case Western Reserve Law Review 44(2): 407–498.Google Scholar

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