New Legal Realism and International Law

Gregory Shaffer

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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