This chapter considers the ‘globalisation’ of empirical legal studies (ELS). Yet, is ELS, in fact, a global enterprise or even a mainstream approach to analysing law and legal institutions in the United States and Europe? Hence the question mark at the end of the chapter’s title. To develop an answer, the chapter begin by asking what is meant by ‘empirical legal studies’; specifically, how can projects falling into this genre be categorised? The chapter proposes an answer by focusing on the goals of the research rather than on (contentious matters of) data and methods. Based on this characterisation of ELS, the chapter inventories academic journals to gauge the spread of ELS. Finding that ELS hasn’t gone as mainstream as the term ‘globalisation’ might suggest, it offers proposals for forward movement.

This chapter adopts a state-centered approach to compliance by examining how the Turkish and UK governments responded to ECtHR rulings on trade union rights. While both states enacted structural reforms to align with ECtHR judgments, the chapter shows that, upon closer inspection, these measures often prove partial and superficial. In Turkey, persistent strike bans, a collective bargaining system that privileges a government-aligned union, and violent repression of union activity indicate deep structural resistance to labor rights. In the UK, compliance took the form of narrow legal adjustments that reflect an instrumental approach rather than an absence of legal capacity. When evaluated solely by formal state responses, ECtHR rulings offer limited leverage for meaningful reform, confirming the pessimism of realist and critical scholars. Yet the chapter also shows that some of the most effective changes occurred before the Court issued its final ruling, suggesting that international law gains traction when combined with grassroots mobilization. In highlighting the limitations of a compliance-oriented perspective, the chapter sets the stage for the next two chapters, which explore how labor activists engage international human rights law not merely as a legal tool, but as part of broader campaigns for justice, recognition, and institutional change.

This chapter explores the transforming constitutional imaginary of the Scandinavian welfare states. Suggesting that the Nordic countries shared a distinctive interpretation of the democratic ideals during the heydays of the social democratic welfare state, the chapter argues that the breakthrough of neoliberalism has fundamentally transformed the Nordic constitutional imaginary. No longer connected to national and popular sovereignty, public participation, labour market arrangements or economic and social equality, Nordic democracy is today increasingly associated with rule of law, individual and human rights, as well as economic freedom. The chapter connects Nordic developments to the recent literature on the constitutional theories in neoliberal thought. Scholars like Samuel Moyn, Quinn Slobodian and Jessica Whyte have amply shown that many leading neoliberals strove to restrict or replace democratic procedures with constitutionally protected market arrangements. In a Nordic context, these ideas were put forward in the debates particularly in the 1980s, but more often than not connected to the processes of globalisation and Europeanisation since the 1990s. As a result, the Nordics ceased to represent a democratic alternative but conformed to the neoliberal mainstream that emerged with the End of History.

This chapter considers the nature of human rights and its critiques. The language of human rights has become the common lexicon of social justice and the critical standard for assessing political institutions. Yet, whilst human rights law occupies a central place in our moral and legal discourse, there are many aspects of the human rights project which are contested. This chapter introduces the key debates as to the origins of human rights rights and the justifications advanced for the existence of human rights. This includes examining institutional critiques which focus on how rights should be enforced; as well as ideological critiques, which argue that the gaps in what is protected and who is protected mean that human rights law is itself part of the problem.

The Introduction sets out the research question of the book viz: the question of whether future generations ought to be represented in the global legal order and institutions to address the climate change challenge and, assuming a positive answer to this, how best such representation should occur. The massive bias against the interests of future generations in current climate law and policy-making is demonstrated. This provides a powerful rationale as to why there is an urgent need to explore proxy-style mechanisms to represent future generations. The pragmatist methodology (in the tradition of John Dewey) of the book is explained. This involves analysing existing practices, and values which are incorporated into these values, and extending them to deal with new problems. The legal realism methodology of the book is also explained, including its application to the sources of international law. The strong links between the book and Earth System Governance scholarship are set out; finally, the structure of the book is explained.

The KCIR was extensively debated in social scientific and legal journals. It was also seriously considered in the era’s most powerful legal professional organizations as a general model for managing industrial disputes. However, support for and hostility to the KCIR cut across established ideological alignments: there was no setting where it did not provoke strong disagreement among influential figures. In economics, a heterogeneous group of institutionalists friendly to the KCIR were rebuffed by Kansas officials, while a coherent group of Wisconsin-connected economists articulated a strong case against it. In law, an ideologically diverse group of leading scholars and practitioners nearly succeeded in winning the Kansas Industrial Court Act’s formal endorsement as a uniform law. But an emergent alliance of academic reformers and elite corporate practitioners succeeded in banning its discussion in key organizational settings. The KCIR controversy hastened the end of the legal profession’s involvement in social legislation and helped extinguish American interest in labor courts.

In an 1870 essay, Oliver Wendell Holmes, Jr. made a series of penetrating observations about the common law that can still be profitably used by researchers in experimental jurisprudence today. First, Holmes observed that common law reasoning is a process in which judges decide the case before determining the principle on which that decision rests. Second, he suggested that this decision is typically fast, easy, and intuitive, while finding its rationale is often slow, difficult, and deliberate. Third, Holmes noted that this behavioral pattern applies not only to judges and lawyers, but to “other men,” that is, to human beings generally. Fourth, he observed that legal intuitions are often correct, whereas the reasons first offered to explain and justify them are often mistaken. Fifth, he suggested that common law reasoning can be modeled as a practical syllogism. Finally, Holmes implied that the common law is not a body of rules existing “outside the head” of those who discern and apply them, but a mental capacity or psychological entity of some sort. Each of these points anticipated key insights associated with strands of Legal Realism, and each offers valuable lessons for experimental jurisprudence.

This chapter offers a brief overview of the basic thesis of the book – that we are currently in a period of widely understood instrumentalism with respect to the creation of common law by appellate courts in the United States. This modern era follows, almost by default, a long and traditional period of formalism, during which it was presumed that the nature of common law creation by appellate courts was fundamentally logical, objective, and mechanistic in nature. Belief in this understanding of appellate court lawmaking was discredited by the legal realist movement, which began in the first third of the twentieth century, and left a void that was filled by instrumentalism.

The current era of common law lawmaking is characterized by a conceptually incoherent and frequently inconsistent amalgam of formalist and instrumentalist elements. This has resulted in practice by, and before, appellate courts in the United States that is often opaque and confusing.

Starting in the 1920s, the traditional conception of what appellate judges were actually doing when they made common law became the subject of sustained critique. Often collectively labeled as the Legal Realists, or the Legal Realist Movement, those advancing this critique aggressively challenged the formalist claim that the lawmaking work of appellate judges was fundamentally an objective, value-neutral, and preference-free enterprise that relied heavily upon formal deductive logic to select among possible versions of legal doctrine.

Instead, the legal realists argued that no matter how much appellate court opinions presented in realist terms the ultimate choices being made, those choices were nearly always the product of the judges’ reliance upon personal social judgments and preferences. They asserted that there was, in fact, little objective, detached, or scientific in these judges’ decisions to make one or another possible version of legal doctrine the binding and authoritative law of the jurisdiction.

During the middle period of the twentieth century, the legal realist critique of traditional formalism came to enjoy a consensus among the professional and academic legal community. Little sincere belief in the formalist paradigm remained by the last half of the twentieth century.

Common law in America is the product of the largely independent work of thousands of different appellate judges working in hundreds of different appellate courts operating in more than fifty different jurisdictions. In characterizing this system as having experienced a profound paradigm shift from formalism to instrumentalism during the twentieth century, one is not suggesting that every appellate judge on the bench before 1,930 was a staunch formalist and that every appellate judge sitting after 1,970 has been a diehard instrumentalist.

Similarly, the legal realist movement need not have definitively established the philosophical impossibility of formalism in order to have effectively toppled it as the conventional understanding of appellate lawmaking, and to have it eventually replaced with instrumentalism. The most potent and persuasive thrust of the legal realist critique was demonstrating that formalism was advancing a false narrative of appellate court decision-making and thereby obscuring the real factors that were driving appellate court judgments.

Despite the current consensus regarding these matters, a practical and tangible transition from formalism to instrumentalism has been long delayed and is, in many ways, not yet even on the horizon. There are a number of institutional reasons for this continuing phenomenon.

This chapter focuses on work exploring the influence of ideology on judicial decision-making. It explores the nature of indeterminacy as developed by the Legal Realists and the Critical Legal Studies movement, the latter of whom regarded judicial decision-making as thoroughly political. It then takes up work, conducted largely by political scientists, that imagines judges as political actors in the same way that legislators are, and surveys both refinements to and critiques of that work.

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

A special regime is a subpart of the international legal system. This is why, in international legal discourse, there are several different conceptions of a special regime. For the same reason as lawyers disagree about the proper definition of the concept of international law, not only do they have different conceptions of an international legal system but they also assume different definitions of the concept of a special regime. There are considerable differences among the different conceptions of a special regime. This observation raises questions about their relative utility. Chapter 1 suggests the adoption of the conception that characterizes special regimes as communities of practice – as it helps to manage and control the effect of legal fragmentation compared to other conceptions.

The ILC Study Group on Fragmentation of International Law asserted that the proliferation of special regimes poses a threat to the unity of the international legal system. Chapter 6 challenges this assumption. It builds on the distinction made in epistemology between knowledge-that and knowledge-how. The idea of a special regime as a community of practice makes it a system of knowledge-how. As such, it is compatible with all of the legal positivist’s, legal realist’s and legal idealist’s conceptions of an international legal system, which either see it as a system of knowledge-that or a combination of a system of knowledge-that and a system of knowledge-how. In the former case, in no way does the proliferation of special regimes affect the unity of the international legal system. In the latter case, the unity of the international legal system is indeed affected, but only in a positive sense, as it increases the efficacy of international law relative to the assumed legal ideal.