Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-24T10:56:27.779Z Has data issue: false hasContentIssue false
  • English
  • Français

Whatever Happened to Gramsci? Some Reflections on New Legal Realism

Published online by Cambridge University Press:  30 July 2015

JAN KLABBERS
Get access Rights & Permissions [Opens in a new window]

Abstract

This article responds to five pieces published in the previous issue of the Leiden Journal of International Law, extolling the virtues of a new legal realism. I first express some doubts as to whether an awful lot can and should be expected from yet another new approach to the study of international law; earlier approaches widely heralded have quietly disappeared from sight, sometimes without leaving much trace. Subsequently, I discuss the extent to which the new international legal realism conceptualizes its notion of empirical reality, followed by a discussion on which interests the new insights spawned by new legal realism are to serve.

Keywords

European Legal Realismincidentslnternational Legal Realismle realismnew legal Realism
Type
INTERNATIONAL LAW AND ITS METHODOLOGY
Information
Leiden Journal of International Law , Volume 28 , Issue 3 , September 2015 , pp. 469 - 478
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See C. N. Murphy, International Organization and Industrial Change: Global Governance Since 1850 (1994).

2 See R. W. Cox, Production, Power and World Order: Social Forces in the Making of History (1987).

3 See (1984) 10 Yale Journal of International Law 1.

4 See W. M. Reisman and A. R. Willard (eds.), International Incidents: The Law That Counts in World Politics (1988).

5 See Reisman, W. M., ‘International Incidents: Introduction to a New Genre in the Study of International Law’, in Reisman, W. M. and Willard, A. R. (eds.), International Incidents: The Law That Counts in World Politics (1988) 3Google Scholar, at 23.

6 Ibid., at 23–24.

7 See Falk, R. A., ‘The Validity of the Incidents Genre’, (1987) 12 Yale Journal of International Law 376Google Scholar.

8 See Bowett, D. W., ‘International Incidents: New Genre or New Delusion?’, (1987) 12 Yale Journal of International Law 386Google Scholar.

9 See Kwakwa, E., ‘South Africa's May 1986 Military Incursions Into Neighboring African States’, (1987) 12 Yale Journal of International Law 421Google Scholar.

10 See F. A. Boyle, reviewing W. M. Reisman and A. R. Willard (eds), International Incidents: The Law That Counts in World Politics, (1989) 83 AJIL 403, at 403 and 406, respectively.

11 Faint echoes can be heard from time to time though. One illustration is G. Guillaume, Les grandes crises internationales et le droit (1994); another is the more ambitious ‘events approach’ launched a few years ago in F. Johns, R. Joyce, and S. Pahuja (eds.), Events: The Force of International Law (2011).

12 See D. Kennedy, International Legal Structures (1987) and M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).

13 See N. G. Onuf, World of Our Making: Rule and Rule in Social Theory and International Relations (1989); F. V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989).

14 See Shaffer, G., ‘The New Legal Realist Approach to International Law’, (2015) 28 LJIL 189CrossRefGoogle Scholar.

15 See Huneeus, A., ‘Human Rights between Jurisprudence and Social Science’, (2015) 28 LJIL 255CrossRefGoogle Scholar.

16 See Holtermann, J. v. H. and Madsen, M. R., ‘European New Legal Realism and International Law: How to Make International Law Intelligible’, (2015) 28 LJIL 211CrossRefGoogle Scholar.

17 See Bodansky, D., ‘Legal Realism and Its Discontents’, (2015) 28 LJIL 267CrossRefGoogle Scholar.

18 See Lang, A., ‘New Legal Realism, Empiricism and Scientism: The Relative Objectivity of Law and Social Science’, (2015) 28 LJIL 231CrossRefGoogle Scholar.

19 International lawyers have generally not done so very overtly: few books are devoted to methodological issues, and even then, not always in compelling fashion. While O. Corten, Méthodologie du droit international public (2009) is indeed a guide on methodological issues involved in research, M. Bos, A Methodology of International Law (1984) is best seen not as methodology but as espousing a theory of sources.

20 See J. Brunnée and S. J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010).

21 See, e.g., F. Johns, Non-legality in International Law: Unruly Law (2013).

22 See the hefty volume by J. L. Dunoff and M. A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013).

23 See F. V. Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (2014).

24 This, incidentally, is what I had in mind when I wrote a decade ago that using game theory for analysing the law of treaties could only entrench state interests: I was not pointing out that there is something problematic about knowing that treaties involve state interests, as Bodansky's somewhat hasty rendition suggests, but rather that a game-theoretical analysis will typically only focus on treaties between states (ignoring other actors because they do not fit the model and therewith strengthen the position of states vis-à-vis those other actors), and only on contractual treaties, therewith ignoring or undermining law-making treaties because they do not fit the model. See Klabbers, J., ‘The Relative Autonomy of International Law or The Forgotten Politics of Interdisciplinarity’, (2004–2005) 1 Journal of International Law and International Relations 35Google Scholar, at 39–40.

25 See, e.g., Heiskanen's excellent dissection of the monism-dualism discussion in V. Heiskanen, International Legal Topics (1992).

26 In a piece dedicated to the reissuing of Koskenniemi's From Apology to Utopia, Kennedy writes that the book is ‘rarely challenged or deeply engaged’, and that ‘it has been tempting to treat the book as a given, a rock to be digested or maneuvered around, rather than a provocation to engage or revise’. See Kennedy, D., ‘The Last Treatise, Project and Person’, (2006) 7 German Law Journal 982Google Scholar, at 991.

27 See, e.g., E. Sosa, A Virtue Epistemology: Apt Belief and Reflective Knowledge (2007).

28 See G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (2012).

29 I am trying to resist the urge to capitalize the term, as capitalization often implies reification.

30 See J. Klabbers, ‘Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force – What's the Difference’, in M. Weller (ed.), Oxford Handbook of the Use of Force in International Law (forthcoming).

31 At least three additional issues are involved in her example. First, how does she define the unit ‘judgment’? Does it include interlocutory measures or advisory opinions? Does she distinguish between judgments on the merits and judgments on jurisdiction or admissibility? Are (possibly) separate decisions on costs included? Second, what does ‘roughly 75%’ mean? Is the real number 74, 82% and just cosmetically improved upon? Or does ‘roughly 75%’ signify anything between, say, 68% and 82%? Third, how do other courts fare? The figures as presented look dismal, but perhaps they are typical for human rights courts.

32 It is hardly a coincidence that Madsen often resorts to interviews with participants or to contextual reading of judgments: this too counts as empirical. For examples, see respectively S. Caserta and M. R. Madsen, Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, iCourts Working Paper 2014/10, and Madsen, M. R., ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’, in Christoffersen, J. and Madsen, M. R. (eds.), The European Court of Human Rights between Law and Politics (2011) 43CrossRefGoogle Scholar.

33 See L. Henkin, How Nations Behave (1979), 47.

34 By way of analogy, political scientists started to realize in the 1960s that power is not just exercised through formal decision-making processes, but also through the blocking of formal decision-making and even by keeping potential issues off the table. For a good overview, see S. Lukes, Power: A Radical View (1974).

35 See, e.g., Shaffer, G. and Ginsburg, T., ‘The Empirical Turn in International Legal Scholarship’, (2012) 106 AJIL 1CrossRefGoogle Scholar.

36 See ibid., at 43. Note that the quest for increased effectiveness presupposes that the contents of international claw are considered normatively desirable. Again, this political question is systematically dodged.

37 It sounds better in archaic Dutch: ‘De weetenschappen zyn zo naauw met elkanderen verknogt, dat d'eene buiten behulp van d'andere niet kan bestaan’. The professor concerned was Frederik Adolf van der Marck, and his words and those of Van der Linden are quoted in Wiarda, J., ‘Toespraak’, in Wiarda, J.et al., Volkenrecht en wereldvrede (1963) 7Google Scholar, at 7–8.