html
pdf (Español (España))
FLIP
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Authors who publish with this journal agree to the following terms:
- Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution Non-Commercial License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.
- Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.
- Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See The Effect of Open Access).
Abstract
New Legal Realism (NLR) is a relevant theoretical strand advancing a constructive relationship between law and the social sciences. NLR broadens the ‘scene’ in legal studies by placing legal issues in their broader social contexts and follows the aspiration of the scientific study of law. Based on the literature review, this article presents a brief discussion on NLR. It argues that an NLR approach might be useful for carrying out research on compliance with (international) law in practice, i.e., the ‘law-in-action’. This article finds that four main characteristics of NLR, mainly its law-centred, interdisciplinary, empirical, and constructive legal action character yields useful results to analyse States’ compliance with the law. It concludes that an NLR approach contributes to moving from exploring law in books to investigate ‘law-in-action’. This involves analysing compliance with the (international) law through domestic law and policy instruments, as well as compliance through social practices. This means to explore the social context within which the law operates. In other words, to investigate the impact of the law at the point of delivery (or the ‘law-in-action’). The underlying purpose of this article is thus to call for collaborative action among legal and social scientific researchers by considering to adopt novel theories, such as NLR, to mix normative legal analysis with consideration of broader and holistic perspectives on the law. Lastly, due to the current research interests of the author, this article includes a brief reflection on adopting an NLR approach to analyse State Parties compliance
with the UN Convention on the Rights of Persons with Disabilities (UN CRPD). Notably, in the available literature, this is an underexplored issue.
References
Augsberg, Ino. Some Realism About New Legal Realism: What’s New, What’s Legal, What’s Real? Leiden Journal of International Law 28, number 3 (2015): 457–67.
Carrington, Paul. Hail! Langdel! Law & Society Inquiry 20, number 3 (1995): 691–760.
Cross, Frank B. The New Legal Realism and Statutory Interpretation The Theory and Practice of Legislation 1, number 1 (2015): 129–48.
Dagan, Hanoch, and Roy Kreitner. 2018. “The New Legal Realism and The Realist View of Law.” Law & Society Inquiry 43 (2): 528–53.
Ehrlich, Eugen. Judicial Freedom of Decision: Its Principles and Objects in Science of Legal Method. Select Essays by Varios Authors, edited by Ernest Bruncken and Layton Register, 47–84. Boston: The Boston Book Company, 1917.
Ehrlich, Eugen. Fundamental Principles of the Sociology of Law. London: Transaction Publishers, 2009.
Garth, Bryant, and Elizabeth Mertz. Introduction: New Legal Realism at Ten Years and Beyond UC Irvine Law Review 6, number 1 (2016): 122–36.
Hage, Jaap. The Method of a Truly Normative Legal Science in Methodologies Of Legal Research: Which Kind of Method for What Kind Discipline?, edited by Mark Van Hoecke, 19–44. Maastricht: Hart Publishing, 2011.
Holtermann, Jakob V, and Mikael Madsen. European New Legal Realism and International Law: How to Make International Law Intelligible Leiden Journal of International Law 28, number 2 (2015): 211–30.
Horwitz, Morton. The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy. Cambridge, MA: Harvard University Press, 1992.
Huneeus, Alexandra. Human Rights between Jurisprudence and Social Science Leiden Journal of International Law 28, number 2 (2015): 255–66.
Kayess, Rosemary, and Phillip French. Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities Human Rights Law Review 8, number 1 (2008):1–34.
Kennedy, Duncan. Form and Substance in Private Law Adjudication, Harvard Law Review 89, number 8 (1976): 1685-1778.
Kingsbury, Benedict. The Concept of “Law” in Global Administrative Law, European Journal International Law 20, number 1 (2009): 23-57.
Llewellyn, Karl. My Philosophy of Law in Philosophy of Law: Credos of Sixteen American Scholars, edited by Fred Rothman, 183–97. Littleton: Boston Law Book Coorporation, 1941.
Macaulay, Stewart. The New versus The Old Legal Realism: Things Ain’t What They Used to Be Wisconsin Law Review 2005, number 2 (2005): 365–403.
Macaulay, Stewart. New Legal Realism: Unpacking a Proposed Definition UC Irvine Law Review 6, number 1 (2016): 149–68.
Mertz, Elizabeth. Introduction New Legal Realism: Law and Social Science in the New Millennium in The New Legal Realism: Translating Law-and-Society for Today’s Legal Practice, edited by Elizabeth Mertz, Stewart Macaulay, and Thomas W.Mitchel, 1–25. Cambridge: University Press, 2016.
Pound, Roscoe. The Scope and Purpose of Sociological Jurisprudence Harvard Law Review 25, number 2, (1911): 140-168.
Shaffer, Gregory. The New Legal Realist Approach to International Law Leiden Journal of International Law 28, number 2 (2015)
Tamanaha, Brian Z. The Third Pillar of Jurisprudence: Social Legal Theory William & Mary Law Review 56, number 1 (2015): 2235–77
##submission.citations.for##
