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.

Contestations about the contents and validity of laws and legal principles are fundamental to the (international) legal profession. After all, when engaging with legal norms, disagreements about their meaning and validity a central part of the day-to-day work of legal professionals specialising in international law, including legal counsel representing governments, international judges, legal officers working for international organisations and non-governmental organisations, and legal academics. We propose a practice-oriented approach to empirically research such interpretive legal contestations by groups of legal professionals. Using an interdisciplinary perspective, we contribute to IR norms research by drawing on not only IR practice theory, but also Bourdieu-inspired research within the Sociology of International Law and ongoing discussions on legal realism in International Legal Theory, including what we have called European New Legal Realism. After outlining how to implement our approach using either a Bourdieusian perspective or the concept of communities of practice, we use normative contestations in and around climate change law to illustrate its added value. Such an approach not only promises to make interpretive legal contestations visible empirically, but also emphasises how interpretive legal contestations matter as they reflect underlying power dynamics and may result in normative legal change in practice.

This chapter explores how biblical law is treated in the gospels, in Paul, and in other New Testament texts. It shows how recent scholarship has demonstrated that Jesus and Paul treat the law in more positive fashion than they are usually given credit for.

This chapter re-inserts the (rethought) concept of territory into the legal-theoretical framework, offering a look at how this concept can be realised and might differently operationalise concepts such as sovereignty and jurisdiction. Taking the concept of sovereignty first, the chapter operationalises this concept as a bundle of legal rights, duties, etc. informed by legal realist methods and social constructivism. The chapter then turns to the concept of jurisdiction, problematising the ‘boundaries’ of and reterritorialising extraterritorial jurisdiction. The chapter offers an alternative to the ‘ownership’ and ‘exclusive’ model of legal rights, which otherwise has at its core a reified and flat territory. The final part explores actorhood, demonstrating how the spaces of international organisations can be understood as their territories. Taking as its starting point the possibility of territorial pluralism, multiplicity, and continuous (re)production, the chapter ends with an account of territories proliferating rather than diminishing. Taking the idea of reterritorialising seriously, it proposes a legal account of the relationship between actors and their spaces.

The scale of the Great Depression and the obvious need for federal intervention mooted laissez-faire arguments. Nevertheless, the continuing vitality of laissez-faire sparked debates in law, economics, and public policy about the proper role of government that, in important ways, continue to the present. The chapter locates the rise of infrastructure as a common term within modernization theory and development economics, which provide the post-World War II with a western-centered model of capitalist growth. Modernization theory drew on social science, economics, and political theory to map society and economy as reciprocal systems that were amenable to policy intervention. Infrastructure” begins to circulate in the early 1950s as a novel concept among staffers at the World Bank and later in Congressional debates over the Marshall Plan. It first takes on a narrow meaning of military facilities and the resources that supported those facilities. From there, it becomes a portable concept that development economists could use to predict the “take off” or stagnation of emerging societies measured by rates of growth, GDP, social stability, and technological advance. We see our contemporary sense of infrastructure crystallize in the 1950s and 1960s as the material precondition for a flourishing modern capitalist democracy.

“The problem of absolutes” refers to the difficulty of grounding and defending absolute prohibitions in a legal system that is rationalized on the basis of means-ends rationality. (An example might be the difficulty in identifying an absolute prohibition on torture that is not susceptible to being reinterpreted, read down, or negotiated away.) In the present paper, I associate this difficulty in the first instance with Max Weber’s account of the rationalization of law and the distancing of law from any sense of sacred or transcendent obligation. But other developments need to be considered as well. I argue that the problem is as much about morality as it is about law. The two law and morality develop together in a complementary way, and the problem of legal absolutes tends to be matched by a corresponding difficulty with moral absolutes, just as the desanctification of law tends to be matched by a desanctification of morality