European New Legal Realism and International Law: How to Make International Law Intelligible

Abstract

International law remains in many ways a challenge to legal science. As in domestic law, the available options appear to be exhausted by either internal doctrinal approaches applying a sui generis legal method in order to identify valid law, or external reductionist approaches applying more general empirical methods, predominantly taken from the social sciences. The claim of this paper is that while these major positions obviously provide interesting insights, none of them manage to make international law (or national law for that matter) intelligible in a broader sense. Instead, the paper argues for a New Legal Realist approach to international law, which accommodates the so-called external and internal dimensions of law in a single more complex analysis, which takes legal validity seriously but as a genuinely empirical object of study.The way the paper constructs this position within New Legal Realism is however not via the well-trodden path of American Legal Realism, but rather by identifying a different, distinctively European path. The approach takes as its primary inspirations Weberian sociology of law and Alf Ross’ Scandinavian Legal Realism and combines them with insights originating from Bourdieusian sociology of law. While these prominent authors are typically viewed as belonging to very different intellectual traditions, the paper demonstrates how there is in fact a distinct intellectual trajectory from Weber over Ross to Bourdieu and European New Legal Realism with regard to developing a rigorous legal science. This approach shares some of its roots with American New Legal Realism as articulated in recent years by a number of scholars, notably via the overall empirical research interest, yet it articulates a different position particularly with regard to the crucial epistemological question of what is legal science. This approach – which is dubbed European New Legal Realism – is however not simply an exegesis of the possibilities of knowledge on law, but rather an operational program for better explaining international law and its institutions.