The New Legal Realist Approach to International Law

Shaffer, Gregory

doi:10.1017/s0922156515000035

Cited by 41 publications

(14 citation statements)

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“…Drawing on a thick analysis of the interpretive contest over Chile's nutrition labeling regulation, we develop a novel approach to study the “missing middle” (Merry 2006a) between international economic law and the policy space de facto available to social regulators in fields such as public health and environmental protection. Expanding on recent advances in legal realism (see Shaffer 2015b) and constructivist political economy (see Abdelal et al 2010), we call attention to the everyday interpretive practices, such as corporate threat letters or public consultation submissions, that make and remake the meaning of international economic law in the minds of social regulators. These practices occur in the context of “regulatory conversations” (Black 2002) between transnational corporations and national bureaucrats that often practically resolve, without formal litigation, how international economic law applies to proposed regulatory measures and if these fall within states' “legally available” policy space.…”

Section: Figurementioning

confidence: 99%

“…But positivists too often proceed on the assumption that real‐world disagreements about the extent of rights and obligations under international economic law are in fact being resolved by such formal and balanced legal analysis. Legal realists argue that, instead, scholars need to ask “how actors use and apply law in order to understand how law obtains meaning, is practiced, and changes over time” (Shaffer 2015b: 189; see also Dezalay and Garth 1996; Merry 2006b).…”

Section: The Social Construction Of “Legally Available” Policy Spacementioning

confidence: 99%

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Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

Dorlach¹,

Mertenskötter²

2020

Law Soc Rev

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This article analyzes the everyday interpretive practices of corporations and bureaucrats that shape the meaning and force of international economic law. To understand how common practices such as public consultation submissions, corporate threat letters, and external legal assistance influence regulators' understanding of their “legally available” policy space, we study the contested introduction of a pioneering nutrition labeling regulation in Chile. The transnational food industry powerfully challenged the regulation's legality under World Trade Organization law. But Chilean health bureaucrats, in coordination with segments of the country's legally highly competent economic bureaucracy, effectively defended the legality of their proposed regulatory measure. Drawing on data from freedom‐of‐information requests and in‐depth interviews, the article argues that the outcomes of such interpretive contests are substantially shaped by participants' knowledge of the entitlements created by international economic law and thus by the international legal expertise they have access to. This often but not always puts transnational corporations at an advantage over national regulators in the strategic interpretation of international economic law.

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Section: Figurementioning

confidence: 99%

Section: The Social Construction Of “Legally Available” Policy Spacementioning

confidence: 99%

Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

Dorlach¹,

Mertenskötter²

2020

Law Soc Rev

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“… 5 It also manifested itself in the NLR scholarship on international law, helpfully analyzed in Shaffer (2015). …”

Section: Notesmentioning

confidence: 99%

“…Sida Liu's chapter (II, 180) on "The Changing Roles of Lawyers in China: State Bureaucrats, Market Brokers, and Political Activists" is particularly illustrative of this last observation.5. It also manifested itself in the NLR scholarship on international law, helpfully analyzed inShaffer (2015).New Legal Realism and the Realist View 537…”

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confidence: 94%

The New Legal Realism and The Realist View of Law

Dagan¹,

Kreitner²

2018

Law soc. inq.

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New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lingua franca” of law as an academic discipline within which NLR insights on translation and synthesis should be situated; conceptualizing NLR's focus on bottom‐up investigation, so that it does not defy the rule of law; and recognizing the normative underpinning for NLR's reformist impulse.

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“…These theorists scrutinize contestation and resistance within transnational legal ordering since, from a legal realist perspective, law and legal norms are not "things," but are relational and develop and change through struggle, including through their interpretation (Shaffer 2015a). Studies reveal that transnational legal ordering involves considerable contestation and resistance at different sites and levels of social organization.…”

Section: Transnational Legal Ordering As Transnational Constructimentioning

confidence: 99%

Theorizing Transnational Legal Ordering

Shaffer

2016

Annu. Rev. Law. Soc. Sci.

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Law encounters, responds to, and shapes an immense amount of transnational economic and social exchange. As information processing and communication technologies revolutionize, transnational social interaction and interdependence deepen. Transnational knowledge practices and social risks spread. Time and space compress. The response to these changes has been a dramatic increase in what can be viewed as transnational legal ordering. Much theorizing of transnational legal ordering revolves around three mismatches: those between global markets and national law; between public law capabilities and private demands; and between private lawmaking and public goals (Mattli 2015). The first spurs legal ordering that is transnational in its geographic scope. The second drives private lawmaking through private contract and private regulation. The third catalyzes hybrid forms of lawmaking, involving international hard and soft law, private legal ordering, and their interaction. These developments challenge the traditional concept of the national public sphere for the making of law (Fraser 2014). Jessup's 1956 Storrs Lecture is widely cited as first giving prominent attention to the concept of "transnational law," which he defined as "all law which regulates actions or events that transcend national frontiers." Jessup's concept reflected a functional concern that the combination of national and international law is inadequate to regulate transnational activities. He thus included in his concept, in addition to public and private international law, "other rules which do not wholly fit into such standard categories." Yet he did not significantly develop that residual category of "other rules." Since then, scholarly interest in the phenomenon of transnational and global legal ordering has grown dramatically. In 2015, fifteen journals used the term "transnational law" or "transnational legal" in their title, and that number expands to forty journals when including the terms "global law" or "global legal." 1 I. Transnational Legal Ordering as Private Legal Ordering A first group of scholars focuses solely or predominantly on private legal ordering in theorizing the transnational. Most of them maintain that the state lacks the will, capacity, or efficiency to create, apply, and enforce law for the coordination and regulation of behavior. This theorizing is grounded in the nature of the actors (private actors) and the form of legal ordering (private contract, standard setting, assessment, and enforcement), giving rise to "a-national" law or "law beyond the state" (Carbonneau 1998; Michaels 2007). The theorists can be broken down into three subgroups: (i) law and economics scholars who focus on privately-made commercial law, or lex mercatoria, as a more efficient and optimal form of lawmaking and dispute settlement; (ii) socio-legal scholars who evaluate private regulation by business and civil society groups; and (iii) private international law scholars who address private international law as a backdrop to private legal ordering whi...

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The New Legal Realist Approach to International Law

Cited by 41 publications

References 24 publications

Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

The New Legal Realism and The Realist View of Law

Theorizing Transnational Legal Ordering

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