Monday, March 30, 2015

Bodansky: Legal Realism and Its Discontents

Daniel Bodansky (Arizona State Univ. - Law) has posted Legal Realism and Its Discontents (Leiden Journal of International Law, forthcoming). Here's the abstract:
The published version of this essay appears in a symposium issue of the Leiden Journal of International Law on the "new legal realism." My contribution to the symposium provides a brief overview of legal realism and sketches out its implications for international law, using international environmental law as an example. Although “new” legal realism is not especially new, its anti-formalist, pragmatic perspective still offers important insights about the international legal process, and serves as a useful counterpoint to a new variety of formalism, which continues to resist the social scientific study of international law. Among its distinctive elements, legal realism views international law instrumentally, is empirical in orientation, and focuses on the processes by which international law is developed, implemented, and enforced, rather than limiting itself to international law doctrine. The fear of critics is that, by deemphasizing the internal point of view and the concept of legal validity, legal realism deprives international law of the very features that make it a distinctive enterprise.