1. Introduction
'The problem is not simply to know what a rule means, but how it lives and works, how it adapts itself to different relations of life, how it is being circumvented and how it succeeds in frustrating circumvention.'
Eugen Ehrlich (1917)1
This document departs from the idea that in legal studies, the method to obtain and analyse research material depends on the theoretical approach and, most importantly, on the concept of law accepted in the research.2 In other words, the concept of law adopted in a legal study inspires its theoretical approach, which guides the process of planning, collecting, and exploring the research material. From this starting point, the purpose of this article is to suggest that a promising legal theory called the 'New Legal Realist approach', inspired by a 'realist concept of law', might yield useful results in studies of States' compliance with the law, and mainly international law. This is due to the fact that an NLR approach favours interdisciplinary and empirical research to adequately assess the impact of law.
To achieve this purpose, this article is divided into three sections. Following this introduction, section 2 discusses the meaning of the 'realist concept of law' (sub section 2.1). This includes a brief overview of common perceptions about law and a commentary to understand how international law, and mainly human rights law might benefit from a richer exchange between jurisprudential approaches and social sciences theory and methods (subsection 2.2). Section 2 also explains the legal theory of New Legal Realism without intending to do so exhaustively (sub-section 2.3). This includes a synthesis of New Leal Realism's distinctive features and a brief historical background of the theory (sub-section 2.4). Moreover, Section 2 reflects on certain promises of New Legal Realism for studies of States' compliance with the law: its interdisciplinary, empirical, and pragmatist dimensions (sub-section 2.3). From the author's perspective, this section briefly addresses the relevance of NLR to analyse States Parties' compliance with the UN Convention on the Rights of Persons with Disabilities (UN CRPD) (sub-section 2.5).
Lastly, the Section 3 of this article includes a concluding remark.
2. Discussion
2.1 What is a 'realist concept of law'?
In a doctrinal understanding, law is a comprehensive and rigorously structured science that does not need to resort to any social goals or methods because it is strictly independent. Nevertheless, Realists Augsberg3 and Mertz4 assert that doctrine is radically indeterminate, therefore, to equate law with doctrine might result in inaccuracies. The main argument of Realists is that, in some cases, the existence of doctrinally predictable results does not imply the existence of any causal or necessary relationship between legal doctrine and the results of concrete cases in a logical or empirical sense. According to Horwitz5 and Carrington6, the Realists' claim of legal indeterminacy is understood as a declaration that doctrine can never be an adequate explanation of legal results. The consideration of the motivations of decision makers and the influence that underlying social and political structures have over legal results is at the core of the idea on the inadequacy of doctrinal explanation.
The indeterminacy of doctrinal legal materials, according to Dagan and Kreitner,7 requires understanding law as a dynamic set of institutions dealing with tensions between multiple factors, such as power and reason, science and craft, and tradition and progress. This is the 'realist concept of law' (also known as 'realistic concept of law') as argued by Macaulay.8 Viewed in that light, law is neither conceived only as the doctrinal formulations contained in doctrinal materials nor is it only about interest or power politics. Dagan and Kreitner9 and Mertz10 concur in arguing that law is an exercise in reason-giving with inherent dynamism. This dynamic conception of law emerges from seeing the law as the product of society that is in a permanently evolving process with changes in society.
As such, law is always in flux as it responds to a changing world and can be used for projects of social change because of its dynamic character. In other words, law is not 'done', and its operation and meaning are shaped by experience. Accordingly, legal studies could adopt a 'realist concept of law', which refers to law as a social process in 'holistic' terms (or as 'a going institution' as called by Llewellyn).11 In the view of Kingsbury12 and Kennedy13, a 'holistic' concept of (international) law includes legal particularities as the set of legally binding rules and principles applicable to the subjects of (international) law, as well as information about the social context and factual environment in which legal mechanisms operate.
Dagan and Kreitner14 argue that it is precisely under this 'holistic' approach to law that it is possible to understand how legal actors use new social developments as 'triggers' for ongoing improvement of the law. Indeed, there are 'paradigm shifts' that confirm how law is a social process embedded in the social sciences and humanities. For instance, the UN CRPD set a 'paradigm shift' for disability by moving towards inclusion of rights holders, using a social model and a disability-human rights framework that understands disability as a human rights issue. Kayess and French15 assert that that these changes in the law about disability are possible because international law is created and used instrumentally. It plays a role in economic, legal, and cultural globalisation processes through catalysing, stabilising, or destabilising. In a similar vein, Shaffer16 claims that the role played by law is not only that of being an 'instrument of power', but also a set of particular epistemologies, forms of reason-giving, and communicative practices that contribute to societal development. The practical reasoning is central to (international) law and there is a social context in which law operates. Therefore, as discussed below, legal studies should combine normative analyses with insights derived from social sciences to develop a 'realist' sense of how (international) law is applied in a reality that is also dynamic.
2.2 A commentary on the 'realist concept' of international human rights law
In today's dynamic world, the new context in which international law interacts is a transnational one. According to Shaffer,17 international law is part of the transnational legal ordering of social problems, and these problems can be investigated across levels of social organisation and across different domains of law. For achieving a fully developed human rights legal scholarship, Huneeus18 proposes that legal studies need to combine the perspectives of jurisprudence and social sciences. For Huneeus,19 strengthening the study of transnational legal phenomena through theoretically informed empirical study makes human rights legal scholarship more useful and productive. This means that it is necessary to understand that studies of compliance with international law can adopt multiple perspectives and that more effective legal reforms are attainable through empirical observation of reality.
According to Garth and Mertz,20 one legal theory inspired in the above-explained 'realist concept of law' that promotes a richer exchange between jurisprudential approaches and social science theory and methods is New Legal Realism (henceforth: NLR). The next section discusses NLR as a school of thought with increasing acceptance as a relevant theoretical approach to advance a constructive relationship between law and the social sciences.
2.3 What is New Legal Realism?
NLR is a specific legal epistemology encompassing how law obtains meaning, is practised, and changes over time.21 This approach contributes insights to legal studies from both empirical research and social science theory. Mertz22 refers to NLR as a 'big tent' perspective to transcend limitations on knowledge. The author asserts 'New Legal Realist work offers the possibility of an integrative effort that reaches not only across disciplines but across people and legal systems.'23 This kind of legal epistemology might challenge the adequacy of studying the legal system when that concept is defined formally and narrowly owing to the fact that reality is naturally changing and 'messy' as explained by Macaulay.24 In this sense, an NLR approach broadens the 'scene'; it places legal issues in their broader social contexts and follows the 'aspiration' of the scientific study of law.
As a legal theory, Macaulay explains that the main concern of NLR is to discover the meaning of law based on its impact at the point of delivery.25 In so doing, NLR takes doctrine seriously and move from law in books to investigate law-in-action. 'Law-in-action' and 'living-law' are two terms that arose from the Legal Realism approach. They both correspond to the notion of how law works or operates on the ground. The idea of 'the law in action' comes from Professor Roscoe Pound. According to Pound, 26 'law-in-action' focuses on the gap between the law in the books and the actual practices of legal officials and the public in cases of disputes. The idea of 'living law' corresponds to Professor Eugene Ehrlich27 and refers mainly to the norms recognised as obligatory by citizens in their capacity as members of associations. This article is conceived very much in the Pound's tradition of studies of legal effectiveness. Thus, this article uses the phrase 'law-in-action.'
As explained by Augsberg28 and Mertz,29 NLR is a legal scholarship that understands that doctrine and legal processes play a role to elucidate legal outcomes (i.e., NLR is law-centred). Additionally, NLR recognises that the impact of law depends on different factors, such as discretion of actors, social practices, political influence, and multiple issues influencing how law manifests once it reaches the lives of people.30 By identifying those issues, a study underpinned in an NLR approach, contributes to make social systems be aware of those issues to solve them (i.e., NLR is committed to constructive legal action). Macaulay31 highlights that NLR also seeks to create a genuinely interdisciplinary form of legal knowledge based on the particularities of the epistemological and normative questions at issue, namely problems that emanate from legal practice (i.e., NLR favours interdisciplinarity in the study of law). Furthermore, as explained by Garth and Mertz,32 NLR scholars focus on the relation between law to social order and social change using a 'bottom-up' approach (i.e., NLR is oriented bottom-up) in addition to 'top-down' approaches in studying law because the central concern is the local delivery of law on the ground.
In legal studies, the purpose of incorporating an NLR approach is to recognise that at the point of delivery, law impacts beyond lawmaker intentions. The focus on 'the impact' of the law was also shared by the original legal Realists, who were concerned with studying the consequences of legal rules in society, as explained in the next section. Nevertheless, NLR extends the original legal Realists' vision and embraces the wide range of social sciences' theories, epistemologies, and 'facts' to study the delivery of law on the ground.
2.4 Brief historical background of the New Legal Realism
The beginning of Legal Realism is chronologically situated in the 1920s and 1930s. Historically, the term 'Legal Realism' was associated with the idea that judges ignore the law and make case decisions at their discretion. However, as elaborated by Cross,33 Legal Realism does not necessarily deny a role for the law in the judicial decision-making process. Realism simply means that judicial decisions are not based on 'formalistic law,' acknowledging the various factors influencing courts. Cross34 affirms that the Realists certainly had it right in the claim that judicial decisions are not 'some algorithmic application of legal materials.' The author claims that judicial decisions, as expressed by the original legal Realists, are influenced by extra-legal circumstances, and what Legal Realism does is to recognise those circumstances looking for answers to questions such as what are those extra-legal factors? When do they apply? Additionally, how can they be shaped to produce more desirable results? Mertz35 and Cross36 concur in arguing that the original legal Realists suggested that decisions could be explained by those factors.
The legacy of the Old Legal Realists was to promote changes in the mind of legal scholars and lawyers to think about how social context influences the delivery of law, mainly how certain real-world influences, outside the realm of doctrine, affect judges' decision making. Consistent with this view, Llewellyn,37 one of the original Realists, called Realism 'a technology.' He claimed that Realism was nothing more than a 'good method' and used ethnography as the primary 'technology' in his legal studies. Shaffer38 also used the term 'technology' to explain law from a pragmatist's point of view. He asserted that legal knowledge arises from engagement with the social world; legal knowledge is developed and used, like a technology, to respond to and resolve problems. To summarise, Realism aimed to describe how judges decide and the key focus of most of the original Realists was appellate judging. As argued by Macaulay,39 the historical relevance of the Old Legal Realism originates from its discredit of formal approaches.
From the novel approach to study law set by Old Realists scholars, in the early 1950s NLR arose addressing questions asked within what Tamanaha40 calls the 'third pillar' of jurisprudence or 'Social Legal Theory.' Tamanaha refers to social science approaches to law as a distinct 'third-pillar' of jurisprudence, closer to the so-called 'historical jurisprudence' that takes an empirically oriented angle on law.41 From the 'third-pillar', law is viewed as a social institution and as instrumental. Such a 'third jurisprudential pillar' emerges as a coherent alternative to natural law (fixed in a moral theorising of law, namely with a normative angle on law) and legal positivism (or analytical jurisprudence with a conceptual angle on law). Tamanaha affirms that these three jurisprudential streams represent genuine theoretical alternatives.42
Under the 'third pillar' of jurisprudence, NLR develops an interactive process between theory and practice (empirical research) and focuses not only on courts, as it tended to be in the case for the Old Legal Realism, but also on social actors, and administrative and private parties in a broader view of the social context within which law operates. According to Mertz,43 the first years of NLR were characterized by a sharp division over methodologies within the group of scholars working to integrate social science into schools of legal thought. Undoubtedly, during its evolving process, NLR sets itself apart from other efforts to integrate social science into law or use empirical findings in legal reviews. As explained by Garth and Mertz,44 NLR pays attention to epistemology and analytical theory, which makes it different from Empirical Legal Studies or Law and Economics.45 Furthermore, Holtermann and Madsen46 argue that NLR differentiates itself from Critical Legal Studies by not taking law as an ideology or as structurally indeterminate in principle and adopting a pragmatic problem-solving focus through an empirical methodological approach.
As part of the distinctive character of the NLR, Mertz47 asserts that the New Legal Realist approach adds to the law-and-society tradition a focus on 'translating' between law and social science. Mertz calls for accomplishing a 'translation' by considering first the interdisciplinary communication process itself.48 Notably, Dagan and Kreitner49 suggest that 'translating' could not be the best term to describe the tasks of NLR scholars since what they are really pursuing is 'interdisciplinarity'. The authors assert that the NLR scholars' endeavour is 'more like a joint engineering project than a translation.'50 This means that the main task in conducting NLR studies is to look for a way to combine two sets of tools based on a commitment to shifting hierarchies among disciplines (interdisciplinary studies). In other words, NLR is not about taking findings from social science and putting them into legal reviews, but to improve ways to understand the context that gives meaning to the law.
As an evolving legal theory, NLR's main promises and most significant challenges (primarily its interdisciplinary, empirical, and pragmatist dimensions) are discussed in the next section, which suggests that these NLR's dimensions might yield useful results in studies of States' compliance with international law. The focus lies on briefly illustrating the relevance of an NLR approach in assessing State Parties' compliance with a particular international human rights law: the UN CRPD.
2.5 Adopting an NLR approach in studies of States' compliance with law: a commentary on the UN CRPD
NLR underpins an analysis of the 'law-in-action' (or the 'UN CRPD-in-action'), namely, how the Convention is implemented and how persons with disabilities experience it. NLR, as legal theory when analysing compliance with the UN CRPD, contributes to analyse the social context within which the UN CRPD (as an international human rights treaty) operates. As such, an NLR approach helps to add insights to studies of States' compliance with the UN CRPD from certain promises: interdisciplinary, empirical research, and a commitment to constructive legal action.
Firstly, as explained above in this article, NLR promotes interdisciplinarity and empiricism in compliance analyses. In doing so, NLR highlights the relevance of combining attention to both doctrine and social science. It addresses the UN CRPD as an international human rights legal instrument and the international and domestic legal institutions that play a role in the implementation of the Convention. Additionally, NLR recognises that the impact of the UN CRPD depends on different factors, such as the self-determination or agency of persons with disabilities; actors' understandings of the disability itself and the UN CRPD norms; practices within social systems; political influences; and multiple other issues affecting how the UN CRPD works out once it reaches the lives of persons with disabilities. Without embracing the wide range of social sciences' theories, epistemologies, and research methods, it is not possible to offer an accurate picture of how the UN CRPD is truly implemented. Thus, an NLR approach in analysis of States' compliance might demonstrate the power of 'translating' or communicating legal knowledge with other multiple disciplines. In so doing, NLR offers the possibility of an integrative effort in disability-research that reaches not only across disciplines but also across persons with disabilities and even different legal systems.
Secondly, NLR is committed to constructive analysis of states' compliance with law. This is the pragmatist (or problem-centred) dimension of NLR. Viewed in this light, NLR might encourage disability scholars to pursue an action-oriented research purpose with a more pragmatic emphasis. Thus, the motive to adopt an NLR approach in studies of States' compliance with the UN CRPD is to provide subjects of law with a clear understanding of legal, social, and perhaps cultural issues that influence the implementation of the Convention. By pointing out the problems arising from social systems that affect the 'delivery' of the UN CRPD on the ground (or the UN CRPD implementation), an NLR approach helps social systems to be aware of such issues to solve them. In doing so, NLR underpins using the study of law to improve the living-conditions of persons with disabilities.
The above-mentioned NLR's promises are interdependent and inspire each other. For the author of this article, such promises might yield useful results to the analysis of compliance with the UN CRPD since based on a legal theory that favours interdisciplinary and empirical research, and has a pragmatist dimension, researchers might not only interpret the legal obligations of States Parties resulting from the UN CRPD but also address how States Parties comply with these legal obligations, namely how the Convention has an effect in domestic laws and policies, and, more importantly, in persons with disabilities' lives. In short, an NLR approach might contribute to research 'the UN CRPD-in-action'.
3. Conclusion
This article has explained that the 'realist concept of law' situates law as an exercise in reason-giving that has an inherent dynamism. This concept of law inspires the New Legal Realist scholarship, which has four distinctive features: (i) is law-centred; (ii) is committed to constructive legal action; (iii) favours interdisciplinary and empirical research; and (iv) is oriented bottom-up. The main possibilities of NLR that might yield useful results in studies of States' compliance with law, and mainly international law are its interdisciplinary, empirical methodological approach, and pragmatic-solving focus. These principles assess the impact of the (international) law, e.g., the UN CRPD, not only at the legislative or institutional levels, but also in practice, i.e., in the daily lives of people.
This article is a call for collaborative action among legal and social scientific researchers by considering adopting novel theories, such as NLR. Further research focusing on the effectiveness, feasibility, and acceptability of applying an NLR approach to the study of States' compliance with (international) law need to be undertaken to inform research on the implementation of the law in practice.