1. Introduction
According to Gregory Shaffer, ‘New Legal Realism’ is basically a revival of ‘classical’ American Legal Realism.Footnote 1 On this account, New Legal Realism, like its predecessor, is based on two theoretical commitments: empiricism and Deweyan pragmatism.Footnote 2 Each of these two commitments includes a strong claim about the question what we can conceive of when we regard things from a legal point of view. The empiricist claim is that objects of cognition exist independently from the particular perspectives and categories we use in order to understand them. In this respect, it is in line with a new anti-constructivist vein in modern philosophy which, under the label ‘New Realism’,Footnote 3 states that reality exists independently from our means of cognition, though we may not easily identify it as ‘nature’ or ‘external world’.Footnote 4 By contrast, pragmatism insists that all our concepts are context-bound. What counts as ‘truth’, ‘objectivity’, or ‘reality’ has to be analysed against the functional background in which these concepts are used.Footnote 5
Thus, legal realism, not only in its Scandinavian but also in its American form, is all about epistemology.Footnote 6 Yet the two epistemological concepts seem mutually exclusive, thus begging the question whether it really is possible to rely on both perspectives at once. In what follows I will question this possibility, claiming that empiricism is a holistic concept, which cannot simply be supplemented by adding another perspective. In order to avoid the pitfalls of reductionism and scientism,Footnote 7 ‘critical self-reflection of . . . empirical endeavors’Footnote 8 is not enough, nor is emphasizing that ‘it has become both cliché and truism . . . to note that all knowledge is situated’.Footnote 9 We have to explain in more detail why this is the case and then elaborate on the consequences.
My argument consists of five steps. First, I question the idea of realism as opposed to the functional context in which an object of cognition appears. I demonstrate how explicitly fictitious scenarios can prove more relevant and reliable and in this sense more ‘realistic’ than any so-called ‘real thing’ (section 2). Second, I explain why law serves as a pivotal example for this kind of functionalist perspective, which undermines the seemingly clear-cut boundaries between reality and its representation. Taking this background duly into account, we have to acknowledge that reality is at least as manifold as these functional perspectives (section 3). Third, I argue that we cannot simply combine the manifold perspectives in order to get a synoptic view on reality as a whole. Perspectives matter. They construct their own, distinct object of cognition (section 4). Fourth, I reflect on the paradoxical nature of statements affirming as fact that there is no such thing as ‘facts’. Paradoxes, I will argue, are nothing to be afraid of. They are an indispensable part of cognition rather than its opposite (section 5). Fifth, I present my conclusion: If we want to talk about ‘legal realism’ beyond the shortcomings of empiricism, we should talk about a specifically legal epistemology that will help us to understand how (international) law creates its own reality – or, to be more precise, how it constructs a reality that, although it does not coincide with any general concept of reality, is compatible with the multiple realities of modern society (section 6).
2. The real thing
The chief witness for my first argument is Henry James' story ‘The Real Thing’. Obviously, from a realist perspective such reference is foredoomed to fail. It seems natural to object to the idea that there is something we can learn from such a story about our concept of reality, since it is merely this: a story, literature, fiction. Yet the point I would like to make, and indeed the point the story itself makes, is that nothing comes in purely natural form. By contrast, James' story demonstrates the extent to which the boundaries between fiction and reality become blurred, once you give up taking things as naturally given and start looking at them from a functional point of view.
In his story, James describes a highly elegant, yet impoverished couple, which puts itself forward to the first-person narrator, a painter, asking whether he might make use of their visual appearance as model for his current work on some book-illustrations. At first glance, the couple seems perfectly fitted for the job. Apparently, in all their gentleman- and ladylike existence, the man – a former army officer tellingly named ‘Monarch’ – and his wife do not need to disguise themselves and play the kind of high society protagonists which the painter has to draw in his illustrations. They are this kind of figure. They are, as Major Monarch himself puts it, the ‘real thing; a gentleman, you know, or a lady’.Footnote 10 Thus, the couple seems to be the ideal model for an art classically conceived of as mimesis, that is to say, imitation of reality.
Yet from the outset, from his first encounter with the couple, the painter is reluctant about their ability to sit as his models, and he promptly lets the reader know where this reluctance stems from: the painter has
an innate preference for the represented subject over the real one: the defect of the real one was so apt to be a lack of representation. I liked things that appeared; then one was sure. Whether they were or not was a subordinate and almost always a profitless question.Footnote 11
When the painter nevertheless starts to work with his new models, his initial distrust in their abilities is gradually confirmed. In particular the woman, in all her ladylike manners, proves to be unsuitable for the task.
I began to find her too insurmountable stiff; do what I would with it my drawing looked like a photograph or a copy of a photograph. Her figure had no variety of expression – she herself had no sense of variety. . . . She was always a lady certainly, and into the bargain was always the same lady. She was the real thing, but always the same thing.Footnote 12
The issue is explained in more detail by presenting another model of the painter, Miss Churm, an underclass girl with a heavy cockney accent and rather harsh manners who, although neither pretty nor elegant in herself, has a remarkable talent to be turned into almost any figure the painter wishes for. ‘I scarcely ever saw her come in without thinking afresh how odd it was that, being so little in herself, she should yet be so much in others.’Footnote 13 Thus, in the end the painter has no use for the ‘real thing’. In order to represent reality in his drawings, he prefers to rely on Miss Churm's services (and, adding insult to injury, on the services of a young Italian who speaks hardly a word of English and is now supposed to represent the gentleman protagonist). All there is left to do for the couple, then, is to bow ‘their heads in bewilderment of the perverse and cruel law in virtue of which the real thing could be so much less precious than the unreal’.Footnote 14
So far, the gist of the story is that from an artist's point of view ‘the real thing’ might seem less suitable and less useful than ‘the unreal’, deliberate fiction. Against the background of a certain purpose, reality can be measured and compared to fiction in terms of ‘preciousness’ and ‘profit’. Interestingly, art thereby takes a functionalist, almost economic approach, and within this approach it is possible that fiction pays off better than reality.
Yet the lesson of the story does not end here. Its real point becomes visible once we look in more detail at James' description of ‘the real thing’. When the painter explains to the Monarchs that Miss Churm may not look like a Russian princess right now but that he can ‘make her’ look that way, Major Monarch proudly replies: ‘“Well now, here's a lady” – and with a persuasive smile he passed his arm into his wife's – “who's already made!”’Footnote 15 Indeed, in a way the Monarchs are more ‘made’ than Miss Churm. They represent a ‘type’, whereas ‘the value of such a model as Miss Churm resided precisely in the fact that she had no positive stamp, combined of course with the other fact that what she did have was a curious and inexplicable talent for imitation’.Footnote 16 Major Monarch is described as ‘a protagonist formed by a public school’ and his wife is referred to as ‘women of as good a fashion as Mrs. Monarch’. Eventually, the painter goes so far as to speak of ‘their really pathetic decorum’,Footnote 17 thus turning upside-down the difference between ‘the real thing’ and ‘the make-believe’,Footnote 18 between ‘being’ and ‘representing’, between truth and rhetorical ornament. And as if this had not been explicit enough, a friend of the narrator comments on the entire issue, describing the Monarchs as ‘people like that, all convention and patent-leather’.Footnote 19
Hence James' claim is not only that fiction can be the better reality. On the one side, of course, the story shows that explicit fiction can present a reality more reliable, more relevant, and in this sense more real than its supposed counterpart. Yet on the other side, and more importantly, it demonstrates that even the so-called real thing can be revealed in its fictitious character. It is nothing simply given or pre-existing, but rather an artificial product of certain circumstances.
Once again, a realist or empiricist may intervene, stating that even if this point may hold true for societal issues like social status, manners, or behaviour, it certainly cannot be generalized with regard to scientific analyses and empirical data.Footnote 20 Taking up this line of argument, what would follow is a debate on the precarious status of scientific objectivity. In this debate, one could, for instance, point to the historical evolution of our (multifold) concept of objectivity, thereby underlining its highly contingent status.Footnote 21 From this point of view, the so-called scientific facts are indeed what etymology tells us about them and what puts them at a par with the Monarchs in James' story: something that is made.Footnote 22 A Kuhnian narrative about the change of paradigmsFootnote 23 would fit nicely to support this kind of argument claiming that all cognition is socially constructed. What is more, one could, in a Foucauldian perspective, scrutinize the historical evolution of the subject of cognition and the procedures in which supposedly ‘certain knowledge’ is produced, stressing how much the history of knowledge is inseparably intertwined with and indebted to a history of power.Footnote 24
However, rather than taking up this general debate I would like to focus on the special legal issue. In my view, law, both on the national and the international level, is a pivotal example for demonstrating the blurred boundaries between reality and representation. In law, what really counts is not ‘the real thing’, but its representational form. Legal reality, then, is the effect of this representation.
3. Legal realities
In contrast to what classical legal realists believed in, law is not constituted by decisions.Footnote 25 In order to recognize decisions as legal, one already has to have a certain concept of law enabling us to distinguish these decisions from decisions stemming from the field of politics, economy, religion etc. Obviously the reference to the person who decides falls short of solving the problem, for then you have to explain why only a few people are recognized as judges and why not all of their everyday decisions but only a small, specific part of them is considered to be law. In short, one cannot talk about the production and the effects of lawFootnote 26 without having a concept of law prior to that.
This line of argument is well known at least since Herbert Hart's critique of rule scepticism.Footnote 27 Accordingly, a purely empirical perspective will never reveal the normative character of decision-making. In order to mark a decision as genuinely normative and thus legal, we need secondary rules enabling us to identify who is legitimized to decide in the first place. Rules, not facts, come first. In a parallel argument, but more along the lines of a Neo-Kantian scheme, one can also claim that ‘is’ and ‘ought to’ and their respective cognition require different kinds of epistemology and thus are not to be mingled. Cognition of facts will never lead to cognition of rules.Footnote 28
While I subscribe to both Hart's and Kelsen's point that law constitutes a distinct field of cognition, my argument how we can ‘empirically’ see that this is indeed the case takes a different turn. My point is that by focusing on empirical causes and effects we might see what the law ‘is’, as an empirical fact, but we will never come to see how the law presents itself. This self-presentation is both ‘real’, in the sense that it is part of our modern world, and ‘unreal’, since it cannot be conceived of as an empirical object. Formalism is not only a theoretical concept of law developed from the outside of the legal system; it is a self-description from its inside. ‘The law’, as Stanley Fish ingeniously phrased it, ‘wishes to have a formal existence’.Footnote 29 This wish at least, if nothing else, is real, and it has its own specific consequences which not only escape the empirical scheme of cause and effect but in some way turn it upside-down. Of course one can scrutinize the effects a good (or bad) breakfast might have on sitting judges, and one may indeed reach startling findings.Footnote 30 Yet the empirical, psychological process of decision-making is something else than the legal reasoning given for the decision. No judge can argue her case with reference to these factual circumstances. If she did so, her argument would be regarded as legally invalid and thus overruled by the next higher authority. Law establishes itself by cultivating a deliberate blindness towards certain empirical causes. This blindness is not a defectFootnote 31 but a functional necessity.Footnote 32 Law's existence – the specifically legal reality – consists in its wished-for form of representation rather than in its connectedness with so-called empirical reality. To acknowledge that ‘jurisprudence exists’ and then to go on taking this existence as an ordinary ‘object of empirical inquiry’ misses the point.Footnote 33 This kind of approach fails to recognize law as a distinct phenomenon. What marks a decision off as legal from the legal point of view, that is to say, what qualifies it as ‘right’ or ‘wrong’ in the normative sense, is not the decision itself. It is the reasoning given to the decision in the aftermath. Law reconstructs rather than constructs itself. What we call law comes ‘after the fact’, thus creating its own causes.Footnote 34 This aspect of law becomes particularly clear in the context of reasoning given by an inferior to a superior court but it is not limited to such context. Rather, the representational form is characteristic of legal communication in general. It applies just as well to legal contexts with no possibility to appeal to higher authorities, as in international or transnational law.
The only plausible way to get rid of this self-description is to consider it as invalid, claiming that all legal effects can be deduced from empirical causes. Thus, the legal self-description of law being an autonomous social sphere can be conceived of as a big fraud, or – since this attribution may be a somehow complicated manoeuvre, fraud itself being a legal concept – as a big illusion which empirical analysis will help us to shatter. My claim is that, from an empiricist's point of view, this analysis is quite correct – but at the same time it ignores that the illusion has a specific social function, which apparently cannot easily be substituted by, say, political or economic institutions. In this sense, even an empiricist should accept that the legal illusion is real. Today's modern society is constituted by different forms of reasoning, which cannot be reduced to a simple cause-and-effect scheme. In consequence, and somehow paradoxically, if we want to analyse how (international) law is produced and what effects it has, the first thing we have to do is to acknowledge that law exists in its own distinct mode of reality. Otherwise there would not be anything left to analyse. Our object of analysis would simply disappear.
Yet the relation between law and reality is even more complex. It does not suffice to say that law's reality is based on representation. This representational mode of existence creates its own criteria of relevance, thereby establishing what can be counted as ‘fact’ and, ultimately, as ‘reality’ in the legal sense. Explicit ‘legal fictions’ are just the tip of the iceberg; they simultaneously reveal and conceal the fact that, for the law, what counts as ‘fact’ and ‘reality’ is a legal construction. ‘Legal systems create facts in order to treat them as facts.’Footnote 35 Thus, it is certainly true that judges ‘do not respond simply to doctrine; they reply also to facts’,Footnote 36 but this finding tells just one side of the story, the other side being that these facts come only into view from a very specific perspective.Footnote 37
It is against the background of such analyses that we should re-evaluate the problem of interdisciplinary encounters and the question how we can integrate scientific expertise into legal decision-making.Footnote 38 The question why – to borrow once again from Fish – ‘Being Interdisciplinary is so Very Hard to Do’Footnote 39 is not convincingly answered by pointing to the internal struggles and fundamental debates within any scientific discipline that render it impossible to talk, of, say, interdisciplinary contacts between international law and international relations scholarship, as if both of them were separate and homogeneous entities.Footnote 40 Of course this statement is correct, and the same applies for the argument that interdisciplinary research often comes as a neatly disguised form of instrumentalizing if not even colonizing the other perspective.Footnote 41 Yet what we need to explain is how interdisciplinarity is supposed to work when the task is to intertwine different concepts of reality. In this context Bourdieu's ‘field’ concept may be helpful,Footnote 42 not because it truly explains the phenomena in question but because it stresses the fact that we cannot satisfy ourselves by claiming autonomy (or semi-autonomy) for the respective social spheres. Obviously, some form of interaction takes place, and we must explain how, despite the autonomy, this interaction is possible at all.
I will come back to this point in a moment. For now, let us draw a preliminary conclusion of what ‘reality’ from a legal point of view is supposed to mean. Talking about ‘the reality of the law’, we should distinguish at least three different meanings. First, we can speak about reality in the empiricist sense of the word, taking law as social fact while ignoring its particular way of self-presentation. Second, by contrast, we can understand this presentation as the primary form in which the law exists and thus reconstructs its own reality. Third, we can talk about ‘reality of the law’ as a reality constructed by legal means for legal purposes. Thus, even when we more or less ignore the multitude of communicative forms present in modern society but focus only on law, reality can no longer be conceived of as a singular given entity. It is a plural, multifold, and dynamic enterprise. A purely empirical approach to the legal system falls short of grasping the real phenomena.
4. The blind men and the elephant
Of course the pluralist as well as functionalist perspective is not completely ignored by legal realists. On the contrary, it is very present, because legal realism, already in its classical American form, is based not only on empiricism but also on pragmatism.Footnote 43 For a pragmatist, notions like reality, truth, objectivity etc. do not point to something that exists outside and independent of our modes of cognition. Rather, these concepts have to be understood with regard to the functional context in which they are used.Footnote 44 Yet how can this pragmatist position be combined with the empiricist claim? How can we solve the ‘latent tension’ between the two perspectives?Footnote 45
On the face of it, one possible way to sort things out is to take the combination of perspectives not as the problem but as the solution. Accepting the fact that there are multifold perspectives on reality, the next step is to state that the whole thing will be conceived of by combining these multifold perspectives. Within the context of a general theory of the state, such an idea was developed by Georg Jellinek who in his ‘Allgemeine Staatslehre’ explains that the state can (and indeed should) be regarded from both a social and a normative point of view.Footnote 46 Generalizing this idea for the concept of New Legal Realism, modern legal scholarship should use all possible perspectives, thus creating a holistic concept of (international) law which includes legal particularities as well as information about the social context and factual environment in which legal mechanisms operate. In doing so, the task is to coalesce doctrinal analyses with insights derived from sociology, economics, international relations scholarships etc. Conceived of in this manner, New Legal Realism is the answer to the problem of ‘the blind men and the elephant. Each senses an aspect of the truth, but each has only a partial understanding. . . . To get a sense of the entire elephant, we need to understand that international law is susceptible of multiple perspectives’.Footnote 47
However, just as famous as Jellinek's two-sides theory of the state is its rejection by Hans Kelsen.Footnote 48 From his neo-Kantian perspective, different forms of cognition depend on different transcendental schemes and categories. These transcendental conditions do not only enable cognition, they thereby construct the specific object of cognition. What is more, the forms of cognition cannot simply be combined or mixed together. They are distinct capacities of the subject, which can rely either on the one or on the other perspective, but never on both sides at the same time. In consequence, the objects of cognition are also distinct. To assume an underlying ‘reality’ for both modes of cognition simply means speculating beyond the subject's cognitive capacity, for there is no transcendental frame of cognition fitting this concept of reality.
This rejection holds true beyond the neo-Kantian scheme in which it was developed in the first place.Footnote 49 If we take the categorical apparatus of the transcendental subject as merely one particular way of representing and thereby conceiving ‘reality’, then Kant's analysis can be combined with modern constructivist approaches. For finite beings observation is always limited. It allows for only one particular mode of observation at a time.Footnote 50 Since there is no superior point of observation from which we could synthesize all other perspectives, ‘overcoming “differences in epistemology, methods, operating assumptions and overall goals”’Footnote 51 is impossible. Within the boundaries of finite cognition, the entire elephant can never be perceived.
5. Embracing the paradox: some realism about realism
A common objection to the kind of perspective elaborated so far is: it is self-contradictory. Like scepticism or relativism, constructivism undermines its own assumptions. One cannot state – that is claim as a fact – that there are no facts without being trapped by performative self-contradiction.Footnote 52
My claim is not that the paradox does not exist. Rather, I would like to emphasize its existence, claiming that is not only inevitable, but indispensable. The paradox is not merely a logical fallacy, something that can and has to be avoided. It belongs to the logic of representation, and thus again to our finite mode of cognition. It is impossible to describe or represent something without becoming, in one way or another, part of the description.Footnote 53 Yet at the same time the description must deny, for the sake of its ‘objectivity’, that the process of description has any influence on the object described. This statement applies also to the process of cognition itself. Since any object of cognition is given to us only by way of representation, we cannot simply multiply representation in order to understand it. The logic of representation is a logic of non-identity. It implies that there is always something that escapes representation. Although it cannot be described, this escaping part is of decisive relevance. Any mode of observation, whether empirical or not, includes a blind spot which can neither be avoided nor observed and described. Nonetheless, it is of constitutive significance for the entire process. A truly realistic approach to reality has to take these non-causal effects into account.
6. Towards a legal epistemology
To sum up, if we want to achieve a realistic concept of law, we must accept that reality is manifold and dynamic. Therefore, it can only be conceived of from different perspectives. In order to take this plurality duly into account, we cannot rely on any one general theory of knowledge. Rather, we need a specific, juridical kind of epistemology, that is to say an epistemology designed for the legal system and its specific purposes.Footnote 54
In this context, I can only briefly address two major problems which such an epistemology will have to face. First, this particular epistemology has to fulfil a classic task: setting the boundaries between what counts as real and what has to be regarded as unreal. That reality is a construction and thus cannot be neatly separated from fiction does not mean that within the internal legal perspective ‘legal reality’ and ‘legal fiction’ means one and the same thing. On the contrary, we need certain criteria enabling us to differentiate between the concepts. The classical but still most plausible candidate for such a criterion seems to be ‘resistance’ (Widerstand).Footnote 55 In its constructivist turn, this resistance must not be conceived of in a substantial sense. Reality is what comes to the fore as a form of counter-operationality. Therefore, it does not contradict the hermetic structure of system operations; it presupposes them.Footnote 56
Second, legal epistemology has to explain how, although the law presents itself as a distinct sphere of communication, thereby creating its own reality, contact between the different functional spheres and their respective worlds is possible at all. On the one hand, law has to maintain its own particular perspective in order to fulfil its normative function. Thus, it cannot simply rely on economic or political categories or on information derived thereof. On the other hand, there must be some exchange of information between the systems. A closer scrutiny of the legal mechanisms reveals that the law already practices a reflexive technique in order to cope with this problem.Footnote 57 It accepts information from other spheres but at the same time maintains its own claim to have the last word on the legal relevance of this information, thus transforming empirical facts into normative reasons.Footnote 58
Given the dimension of these tasks, I doubt that ‘mid-range-theorizing’ will do.Footnote 59 Rather, a New Legal Realism in the aforementioned sense requires an equally new concept of law which includes a specified legal epistemology. It is only against the background of such a newly defined theoretical framework that ‘empirical’ findings can be properly understood and integrated into the legal process. Yet this priority of conceptual thinking does not mean that everything depends on this framing. In particular, it does not prevent the idea of ‘emergent analytics’.Footnote 60 On the contrary, as a necessarily finite mode of thinking it must be aware of its own limitations and thus take into account that there may be new ‘empirical’ phenomena which, though visible only from a certain perspective, challenge this very perspective.
