Understanding international judicial behaviour requires the development of a perspective that considers both individual and collective action. On the one hand, individual judges are influenced and shaped by their background and trajectory prior to their international judicial appointment; on the other hand, when appointed to international courts, they become part of a particular social setting and group dynamic. The article provides an interpretive, structural theory of judicial behaviour which allows for an understanding of international judicial action and the judicial institutional practices resulting from it. The article explains this double structuration of international judicial behaviour by first reconsidering and amending the notion of habitus, originally developed by Pierre Bourdieu, and secondly by applying this idea to the practice of the Caribbean Court of Justice.

Is the public backlash against human rights rulings from European courts driven by substantive concerns over case outcomes, procedural concerns over sovereignty, or combinations thereof? We conducted preregistered survey experiments in Denmark, France, Poland, Spain, and the United Kingdom using three vignettes: a foreigner who faces extradition, a person fighting a fine for burning Qurans, and a home owner contesting eviction. Each vignette varies with respect to whether a European court disagrees with a national court (deference treatment) and whether an applicant wins a case (outcome treatment). We find little evidence that deference moves willingness to implement judgments or acceptance of court authority but ample evidence that case outcomes matter. Even nationalists and authoritarians are unmoved by European court decisions as long as they agree with the case outcome. These findings imply that nationalist opposition to European courts is more about content than the location of authority and that backlash to domestic and international courts may be driven by similar forces.

The paper investigates and theorises different forms and patterns of resistance to international courts (ICs) and develops an analytical framework for explaining their variability. In order to make intelligible the resistance that many ICs are currently facing, the paper first unpacks the concept of resistance. It then introduces a key distinction between mere pushback from individual Member States or other actors, seeking to influence the future direction of a court's case-law, and actual backlash – a critique triggering significant institutional reform or even the dismantling of tribunals. On the basis on the proposed theoretical framework, the paper provides a roadmap for empirical studies of resistance to ICs, considering the key contextual factors necessary to take into account in such studies.

One of the most striking trends in contemporary international law (IL) scholarship is the turn to empirical research methods. Some see this as sign of progress, whereas others call for caution or even show hostility. With a view to the future of IL scholarship, however, all sides in this at times heated debate seem to have considerable problems keeping a clear focus on the key question: What are the implications of this empirical turn in terms of philosophy of legal science, of the social understanding of IL, and, not least, of the place of doctrinal scholarship after the alleged Wende? What is needed, we argue, in order to answer this question is not yet another partisan suggestion, but rather an attempt at making intelligible both the oppositions and the possibilities of synthesis between normative and empirical approaches to law.

Based on our assessment and rational reconstruction of current arguments and positions we outline a taxonomy consisting of the following three basic, ideal-types in terms of the epistemological understanding of the interface of law and empirical studies: toleration, synthesis and replacement. This tripartite model proves useful with a view to teasing out and better articulating implications of and interrelations between positions. As such the model: i) provides a framework to better situate arguments about the role of empirical studies in IL; ii) helps identify real epistemological stakes in order to overcome ‘trench wars’ – or worse: absence of dialogue and genuine argument; and iii) thus ultimately contributes to the development of a genuine basic science-of-law.

In this separate rejoinder to Jan Klabbers' and Ino Augsberg's comments to the articles in the symposium on New Legal Realism in International Law (Leiden Journal of International Law, Volume 28:2, 2015), we respond from the point of view of the European New Legal Realism (ENLR) as propounded in our initial contribution to the symposium. Agreeing with Ingo Venzke who wrote in his introduction to the symposium that ‘stakes are high’ in the debate over international law and methodology, we argue that both Klabbers and Augsberg, each in their own way, fail to take sufficiently seriously the ENLR challenge to doctrinal scholarship. We argue that Klabbers underestimates the evergreen and persistent character of this challenge when he portrays the current push for New Legal Realism as merely a whimsy fashion wave. And we argue that Augsberg's essentially Kelsenian defence of doctrinal scholarship is insufficiently robust because it inherits the excess epistemological liberalism of its underlying Neo-Kantianism.