New Legal Realism, Empiricism, and Scientism: The Relative Objectivity of Law and Social Science

Abstract

In this article, I suggest that one of the central characteristics of New Legal Realism is the productive tension between empiricist and pragmatist theories of knowledge which lies at its core. On one side, new realist work in its empiricist posture seeks to use empirical knowledge of the world as the basis on which to design, interpret, apply, and criticize the law. On the other, in its pragmatist moments, it explicitly draws attention to the social and political contingency of any claims to empirical knowledge of the world, including its own. As a consequence, it is distinctive of much scholarship in the New Legal Realist vein that it continually enacts creative syntheses of different philosophies of truth in an attempt to be, in Shaffer's words, ‘positivist . . . interpretivist, and legal realist all at once’. The first part of this article draws on existing historical accounts of legal realism briefly to trace the problematic and ambiguous place of scientism in the legal realist tradition. Then, in the second and more important part of the article, I argue that the ambivalence of the legal realists’ vision has left us, in certain contexts, with a complicated form of mixed legal-scientific governance which has proved remarkably and surprisingly resilient in the face of late twentieth century critiques of scientific objectivity. This may be one of the most enduring legacies of the ‘old’ legal realists for those today who work in the New Legal Realist vein.

Techniques of Knowing in Administration: Co‐production, Models, and Conservation Law

“…The model needs to`credibly pass as objective in a particular context, for certain purposes, and only for now', not for all purposes and all time. 158 What Andrew Lang calls```as if'' knowledge practices' is also a useful way of working through the role of the models in decision making in our cases.`As if' knowledge practices have`very little aspiration to facticity: they do not seek to accurately represent the world, but rather to offer themselves as a tool for action within it'. 159 This suggests that we should assess our models not in terms of the certainty or accuracy of their outcomes, but in terms of their contribution to the task of legitimate governance.…”

“When Paradigms Are Out of Place”: Embracing Eclecticism in Legal Scholarship by Academic Turns

“…From a more macro point of view, international law's contemporary knowledge production is actually characterized by the concurrence yet rivalrousness of international legal positivism and legal realism (see, e.g., Kammerhofer and d'Aspremont 2014). However, the recent development illustrates the increasing dominant or popular position that legal realism and socio-legal perspectives are taking towards international legal scholarship (Lang 2015;Holtermann and Madsen 2015). Such dominance even creates a momentary illusion that we are all international legal realists now (Cohen 2021).…”

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“…From an international perspective, however, the contemporary mainstream, or the so-called western marketplace, of international legal thoughts tell an entirely different story, the midpoint of which is a steadfast confirmation of the significance of social sciences in the scholarly inquiry and treatment of the miscellaneous international legal issues and phenomena (to name but very few, Nourse & Shaffer, 2014;Shaffer, 2015;Shaffer & Ginsbury, 2012). Although the shortage of, as well as the difficulty of conforming to, an authoritative and unified ranking list that could authentically categorize the international legal academics in a statistic manner, it is intuitively plausible to identify the ostensibly surmisable correlation between the socio-legal "plug-ins", namely being interdisciplinary, empirical and pragmatical (see, e.g., Lang, 2015), and the academic success of these leading international legal scholars and upward new academic stars such as Martti Koskenniemi, David Kennedy, Gregory Shaffer, Jean D'Aspremont, Mikael Rask Madsen, Ryan Goodman, Anthea Roberts in our contemporary age. Of course, these scholars' particular propensities in academic production could not get rid of the tendentious incentives of the publishing market and epistemic community.…”