"Realizing Utopia as a Scholarly Endeavour"

Michigan Law Authors
Publish Date
2013
Publication
European Journal of International Law
Publication Type
Journal Article
Abstract

The article defends ‘critical’ or ‘ideational’ positivism and explains why and how it can be conducted successfully as legal scholarship. In order to accumulate replicable intersubjective knowledge, legal scholarship should focus less on concrete applications of law, but needs to generate theories in the sense of models that express the patterns of data in the field under observation as parsimoniously and concisely as possible, and thereby reduce complexity. The article then discusses how scholarly contribution to law reform can be explained doctrinally and how it can be justified in normative terms. International legal scholars cannot and should not ‘make’ international law in the same sense as governments, because they largely lack the legitimizing factors of representativity, participation, publicity, and accountability. The authority of scholars is not an institutional, procedural, or social one, but purely an epistemic one. Legal academic activity is inescapably political. Scholars should find a middle ground between the unrealistic postulate of value-freedom (Wertfreiheit) and unbounded evaluation. International legal practice supports international legal scholarship, notably by providing a ‘reality check’. Scholarship can inversely support practice by pursuing a via media between infertile alienation from and fetishism with practice. To do so successfully, applied legal research must be complemented by foundational research. Secondly, doctrinal analysis should be complemented by empirical, ethical, and theoretical research. And, thirdly, the typical indeterminacy and dynamics of international law suggest the complementing of positive analysis by normative analysis, because purely positive analysis engenders a false security. The article concludes that the programme of a ‘realistic’, as opposed to an ‘illusionary utopia’ is the province of legal scholars.

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