Turning Empirical? The Transformation of Scholarship of International Law (TEMPTATION)
In recent decades, legal academia has witnessed an increasingly fierce Methodenstreit. At heart lies an alleged empirical turn in legal research: legal scholars appear to be turning away from traditional doctrinal scholarship of valid law and toward disciplines like computer science, sociology, political science, etc. Focusing on scholarship of international law, TEMPTATION aims to theorize and conceptualize the alleged empirical turn philosophically and to study its scope and character empirically.
Supported by a grant from the Independent Research Fund Denmark, TEMPTATION studies the increasingly fierce Methodenstreit that is currently unfolding in law – and particularly in international law. The battle revolves around competing conceptions of legal science about its proper research object, theory and method. Some describe the development as an empirical turn thereby referring to the apparently growing group of scholars from both within and outside law turning from traditional doctrinal to novel empirical approaches to the legal field. Much is at stake in this battle. Immediately, conflicting truths about law and the legal field. But this soon leads to changes on the ground. Ultimately, a successful empirical turn will significantly reshape the contours of legal education, which due to the size and importance of the legal profession can affect broader society. Nevertheless, the empirical turn is poorly understood. Discussion is marred by weak conceptualizations of “the empirical”, and strong bipartisan sentiments pro et con. This puts discussion at a standoff. TEMPTATION aims in response to examine this phenomenon critically, combining a philosophical analysis of concepts and arguments with an empirical analysis of the actual scope of the alleged ET and of the factors driving it.
- TEMPTATION aims to subject the so-called empirical turn in international legal scholarship to a critical examination adopting a professedly agnostic approach. Without taking sides, the project combines philosophical analysis of concepts and arguments with empirical analysis of the actual scope of the development and of the factors driving it. The project thereby asks the following research questions to be addressed in separate work-packages:
- RQ 1: What does it mean theoretically for legal science to be turning empirical?
- RQ 2: To what extent is legal science in fact turning empirical?
- RQ 3: What are the factors driving and/or inhibiting an ET in legal science?
- “The Reality of International Legal Theory – Reality in International Legal Theory”, international conference held 19-20 May 2022 in Copenhagen, in collaboration with the European Society of International Law’s Interest Group on International Legal Theory and Philosophy.
- “Turning Empirical? The Transformation of Scholarship of International Law” and “How do we know what is true in the field of law?”, joint seminars held 13-14 June 2022 at the EUI, organized in collaboration with The EUI Human and Fundamental Rights Working Group in collaboration with the Legal and Political Theory Working Group.
- European New Legal Realism:
- Under the banner of European New Legal Realism (ENLR), this project addresses what appears to be a false dilemma governing discussions of the empirical turn in international law. Apparently, the available alternatives are exhausted by either traditional internal doctrinal approaches, or more novel external approaches applying reductionist empirical methods primarily from the social sciences, which tend to reduce law to that which is not law. The project on European New Legal Realism challenges this assumption. While both these traditional positions provide valuable insights, none of them manages to make international law intelligible in a broader sense. Instead, ENLR argues for an approach to international law that accommodates the so-called external and internal dimensions of law in a single more complex analysis, which takes legal validity seriously but as a genuinely empirical object of study. ENLR constructs this position by identifying a distinctively European realist path which takes as its primary inspirations Weberian sociology of law and Alf Ross’ Scandinavian Legal Realism and combines them with insights originating from Bourdieusian sociology of law.
- European New Legal Realism is driven by core members of iCourts Jakob v. H. Holtermann and Mikael Rask Madsen. It has already resulted in a number of highly influential contributions published in recognized journals and publishing housing, and Holtermann and Madsen are currently working on a monograph presenting a comprehensive programme for a European New Legal Realist approach to international law.
- Selected publications relating to ENLR:
- Holtermann & Madsen, “European New Legal Realism and International Law: How to Make International Law Intelligible”, Leiden Journal of International Law (2015), 28, pp. 211–230 (SSRN working paper version)
- Holtermann & Madsen, “What is Empirical in Empirical Studies of Law? A European New Legal Realist Concetion”, Retfærd (2016), issue 4, pp. 3-21 (SSRN working paper version)
- Holtermann & Madsen, “Chapter 5: European New Legal Realism: Towards a basic science of law”, in Talesh et al. (eds), Research Handbook on Modern Legal Realism, Edward Elgard Publishing (2021)
- Ross, On Law and Justice; JvH. Holtermann (ed. & intr.); U. Bindreiter (transl.), Oxford University Press, 2019 (2. ed., 1953, 1. ed.).
iCourts has received a four year funding from Danish National Research Foundation