Legal Realism in International Law

By: Assem Belhadj

Edited by: Dheven Unni, Michelle Pak, and Kirsten Huh

One of humanity’s most unique evolutionary traits is collaboration. As our social systems expanded and developed, social rules were formed to delineate which kinds of behavior are and are not acceptable. These laws evolved and have manifested in various ways as we developed distinct cultures and legal systems. With increasing globalization, our laws, legal traditions, and cultures have increased their contact with one another, creating a need for nations to collaborate further culminating in the emergence of international law and the International Court of Justice (ICJ). While it is difficult to reach global consensus on universal human rights and values, approaching international law through a legal realist approach—which affirms that jurisprudence should rely on empirical methods—allows for international judges to arrive at more objective decisions without giving preference to any legal tradition or succumbing to geopolitical influences.

British legal philosopher H. L. A. Hart, in his book The Concept of Law, described the law as the union of primary rules and secondary rules. Primary rules govern societal conduct and outline rules and consequences when they are not followed. [1] Secondary rules define what counts as the law, how laws can be changed, and how individuals judge the application of the law. [2] What separates laws from other rules is that laws are enacted through political processes. The meaning and viability of the law usually come into question during legal cases, requiring a methodology of interpreting the law that can ensure philosophical consistency and fairness. 

On the international stage, laws are usually derived from rules that govern nations’ conduct. International law is a relatively new legal system, set up along the lines of the UN ICJ Statute. Article 38 directs the ICJ to use “international conventions, … international custom, … the general principles of law recognized by civilized nations, [and]… judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” [3] However, what happens when these sources of international law contradict one another based on differing legal traditions? Or when they result in decisions by the ICJ that serve national interests rather than the international community? While some of these sources of international law are based on commonly accepted principles (jus cogens) or agreements between nations, seats distributed by geographic region attempt to account for differences in legal traditions: five for Western countries, three for African countries, two for Eastern European countries, three for Asian countries, and two for Latin American and Caribbean countries. [4] To account for the differences in legal traditions, the inconsistencies in the sources of international law, and to interpret the law with fairness to the international community, international legal jurisprudence must seek objective, empirical methods through which to make legal decisions. A legal realist approach would recognize that law is indeterminate due to its ambiguities, and that the law as it exists is separate from the law as it should be. [5] The law and its applications, however, are inseparable, and to properly evaluate and interpret the law, it must be tested through natural observations. This approach would benefit the objectivity in international legal cases, as judges would draw logical conclusions based on real-world observations independent of political interests and subjectivities, rather than relying on legal traditions or engaging in moral quandaries.

To achieve this objectivity, legal interpreters must understand how the law is practiced and is observed in society. The development of legal realism in the 20th century exposed the extent to which politics influences judicial decision-making and questioned earlier methods of impartial legal interpretations. [6] Legal realism allowed for the focus to be placed on the law in practice rather than in text. The actions of judges and the factors that led to their decisions were analyzed closer as human behaviors, leading legal realists to turn to social scientific methods to hypothesize legal outcomes. [7] Additionally, the developments in understanding society that have occurred in the century since legal realism was pioneered expanded the methods of understanding the law and its applications. Novel empirical methods in social scientific inquiry provide international legal scholars and judges with new ways to test hypotheses and make more scientific conclusions on international law. To account for these modern developments, a “New Legal Realist understanding of international law …  [takes into consideration] how international law obtains meaning, is practiced, and develops over time.” [8] This New Legal Realist (NLR) approach utilizes modern methods to broaden the sociological analysis of international law. Legal realism is not only grounded in objectivity, but also can progress with developments in the social sciences, further solidifying its importance in the future of international legal decisions. 

With the progressive nature of the NLR approach to international law, there arises the question of the role of past precedent in ICJ rulings. However, the ICJ statute explicitly excludes past decisions in the sources of international law. Former President of the ICJ, Gilbert Guillaume, wrote that “in developing its jurisprudence, the Court may refer to its precedent, but it has no binding character.” [9] Invoking stare decisis in the ICJ may challenge an NLR view that relies on the development of social scientific inquiry. But further challenges arise within an NLR ideological framework: how could stare decisis be based on the ever-changing social scientific consensus? Another challenge arises in considering the non-Western legal traditions that may not place importance on stare decisis. In order to deal with these challenges, international legal jurisprudence should first disregard attempts to legitimize stare decisis in ICJ decisions as it has no “binding character” in the sources of international law. Consequently, within an NLR approach, precedent should not be invoked to account for the ever-changing nature of social scientific inquiry. This provides leeway for international justices to determine which social scientific methods and conclusions are legitimate. The merits in this leeway arise when considering that no single scientific view will hold authority over court decisions, but this leeway will also let judges to provide their own argumentation on the methods they use which may lead to a variety of decisions being made under the facade of NLR. These challenges to legal realism in international law are vital to consider when seeking an international jurisprudence that can remain impartial to geopolitical influence.

Various traditions, values, and cultures make human groups distinct, which makes international jurisprudence more difficult. The most direct way to overcome these differences to arrive at common legal truths, however, is to empirically and logically interpret international law and its applications. International law exists to regulate behavior between states and using established truths of reality can allow for fairer and more just international legal systems. Once international law reaches this level of objective fairness, nations can be held accountable regardless of politics. This international justice can let us reach new, global heights of human collaboration and progress.

NOTES:

1. Hart, “The Concept of Law,” 81.

2. Hart, “The Concept of Law,” 79-99.

3. “Statute of the International Court of Justice”

4. Harris, “Cases and Materials on International Law,” 839.

5. Llewellyn, “Some Realism about Realism: Responding to Dean Pound,” 1222.

6. Bybee, “Legal Realism, Common Courtesy, and Hypocrisy,” 76.

7. Frank, “Law and the Modern Mind” 

8. Shaffer, “The New Legal Realist Approach to International Law”

9. Guillaume, “The Use of Precedent by International Judges and Arbitrators,”

BIBLIOGRAPHY:

Bybee, Keith J. “Legal Realism, Common Courtesy, and Hypocrisy.” Law, Culture, and the Humanities 1 (2005). 

Frank, Jerome. Law & the Modern Mind. Abingdon: Routledge, 2017. 

Guillaume, Gilbert. “The Use of Precedent by International Judges and Arbitrators.” Journal of International Dispute Settlement, vol. 2, no. 1, 2011, pp. 5–23., doi:10.1093/jnlids/idq025.

Harris, David, and Sandesh Sivakumaran. Cases and Materials on International Law. London: Sweet & Maxwell, 2020. 

Hart, H. L. A. The Concept of Law. Oxford: Oxford Univ. Press, 2012. 

Llewellyn, Karl. “Some Realism about Realism: Responding to Dean Pound.” Harvard Law Review 44, no. 8 (June 1931). 

Shaffer, Gregory. “The New Legal Realist Approach to International Law.” Leiden Journal of International Law 28, no. 2 (June 2015). 

“Statute of the International Court of Justice.” Statute of the Court | International Court of Justice. Accessed November 19, 2020. http://www.icj-cij.org/en/statute.