Questions about methodology are questions of disciplinary identity. It is thus not surprising that they provoke such heated debates. The state of methodological debates is indicative of the condition of a discipline. If those debates advance to the centre of attention within any specific field of scholarly practice, it typically indicates a moment of crisis or – less dramatically – a push for change. In other times of relative stability, questions of methodology tend to stay on the margins of the field. Scholarly practice goes about its routine business along well-established lines. It uses the tools of a discipline without further ado.

The New Legal Realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practised, and changes over time. The article addresses the jurisprudential roots of the New Legal Realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the New Legal Realism is both empirical and problem-centred, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem-solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the New Legal Realist approach in terms of scientism and relativism, and it responds to them.

International law remains in many ways a challenge to legal science. As in domestic law, the available options appear to be exhausted by either internal doctrinal approaches, or external approaches applying more general empirical methods from the social sciences. This article claims that, while these major positions obviously provide interesting insights, none of them manage to make international law intelligible in a broader sense. Instead, it argues for a European New Legal Realist approach to international law accommodating 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. This article 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.

In this article, I suggest that one of the central characteristics of New Legal Realism is the productive tension between empiricist and pragmatist theories of knowledge which lies at its core. On one side, new realist work in its empiricist posture seeks to use empirical knowledge of the world as the basis on which to design, interpret, apply, and criticize the law. On the other, in its pragmatist moments, it explicitly draws attention to the social and political contingency of any claims to empirical knowledge of the world, including its own. As a consequence, it is distinctive of much scholarship in the New Legal Realist vein that it continually enacts creative syntheses of different philosophies of truth in an attempt to be, in Shaffer's words, ‘positivist . . . interpretivist, and legal realist all at once’. The first part of this article draws on existing historical accounts of legal realism briefly to trace the problematic and ambiguous place of scientism in the legal realist tradition. Then, in the second and more important part of the article, I argue that the ambivalence of the legal realists’ vision has left us, in certain contexts, with a complicated form of mixed legal-scientific governance which has proved remarkably and surprisingly resilient in the face of late twentieth century critiques of scientific objectivity. This may be one of the most enduring legacies of the ‘old’ legal realists for those today who work in the New Legal Realist vein.

This article argues that human rights law – which mediates between claims about universal human nature, on the one hand, and hard-fought political battles, on the other – is in particular need of a richer exchange between jurisprudential approaches and social science theory and methods. Using the example of the Inter-American Human Rights System, the article calls for more human rights scholarship with a new realist sensibility. It demonstrates in what ways legal and social science scholarship on human rights law both stand to improve through sustained, thoughtful exchange.

This article provides a brief overview of legal realism and sketches out its implications for international law, using international environmental law as an example. Although the ‘new’ legal realism is not especially new, its anti-formalist, pragmatic perspective still offers important insights about the international legal process, and serves as a useful counterpoint to a new variety of formalism, which continues to resist the social scientific study of international law. Among its distinctive elements, legal realism views international law instrumentally, is empirical in orientation, and focuses on the processes by which international law is developed, implemented, and enforced, rather than limiting itself to international law doctrine. The fear of critics is that, by de-emphasizing the internal point of view and the concept of legal validity, legal realism deprives international law of the very features that make it a distinctive enterprise.

Since the Simmenthal case of the ECJ, the national judge has been coined the ‘ordinary judge of EU law’, meaning that this judge has the primary responsibility for ensuring the effectiveness of EU law through different techniques. While there has been a large amount of research on the role of domestic courts in relation to international law, the question of whether the domestic judge could also be characterized as the ‘ordinary judge of international law’ in the sense the phrase is used regarding EU law has never been raised. This article identifies the contents of the phrase in the context of EU law in order to test it against international law. It undertakes this by transposing the different types of invocability – direct effect, invocability of consistent interpretation, invocability of damages, and invocability of exclusion – which set the national judge as a primary judge of EU law, to international law before domestic judges. While the analysis relies mainly on French case law relating to international law, comparisons are drawn, where relevant, between the case law of this jurisdiction and that of other jurisdictions in order to establish a general trend. This permits the conclusion that, while the French courts remain reluctant to ensure the effectiveness of international law through the adoption of the different techniques of invocability, other domestic judges behave as ordinary judges of international law in a way that is very similar to the way the national judges treat EU law.

This article argues that the European Court of Human Rights (ECtHR) uses external references as a tool to enhance ‘constitutional justice’. This technique is illustrated by the Court's contribution to an important shift in migration law beginning in the late 1980s and resulting in an enhanced scheme for protection against expulsion in Europe. This shift reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’. The aim of the article is to contextualize the aforementioned shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding instruments issued by the Council of Europe and to other human rights treaties. In this regard, the case of protection against expulsion illustrates a particular feature of the Court's turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. This allowed the Court to develop a meaningful and comprehensive protection scheme in the first place. However, the article reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law, domestic decisions are reviewed with significantly less scrutiny. This limitation may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralization in the jurisprudence of the ECtHR.

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The jurisprudence of the International Criminal Court (ICC) up to the Lubanga judgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.

This perspective has been overturned by the Katanga judgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.