New Legal Realism's Rejoinder
Gregory C. Shaffer, New Legal Realism's Rejoinder, 28 Leiden J. Int'l L. 479 (2015).
This rejoinder responds to criticisms by Jan Klabbers and Ino Augsburg of the The New Legal Realist Approach to International Law (Leiden Journal of International Law, vol. 28: 2, 2015). The new legal realism brings together empirical and pragmatic perspectives in order to build theory regarding how law obtains meaning, is practiced, and changes over time. Unlike conceptualists, such as Augsburg, legal realists do not accept the priority of concepts over facts, but rather stress the interaction of concepts with experience in shaping law’s meaning and practice. Klabbers, as a legal positivist, questions the value of the turn to empirical work and asks whether it is a fad. The rejoinder contends that the new legal realism has deep jurisprudential roots in Europe and the United States, constituting a third stream of jurisprudence involving the development of socio-legal theory, in complement with, but not opposed to, analytic and normative theory.