1 L. M. Friedman, American Law in the Twentieth Century (2002), 493.

2 Like the original legal realists, relatively few international lawyers undertake empirical studies, although this is beginning to change. See Shaffer, G. and Ginsberg, T., ‘The Empirical Turn in International Legal Scholarship’, (2012) 106 AJIL 1CrossRefGoogle Scholar. I suspect many feel the same way as Oliver Wendell Holmes, who once observed, ‘I have little doubt that it would be good for my immortal soul to plunge into [the facts] . . . but I shrink from the bore’ (Quoted in S. Macaulay, ‘The New Versus the Old Legal Realism: “Things Ain't What They Used to Be”’, (2005) Wisconsin Law Review 365, at 372 note 33.)

3 Friedman, supra note 1, at 493 (indeed, Friedman finds that ‘most of what passes for legal “research” . . . is as antediluvian as ever’).

4 Blank, Y., ‘The Reenchantment of Law’, (2011) 96 Cornell Law Review 633, at 643Google Scholar.

5 The following discussion draws on D. Bodansky, The Art and Craft of International Environmental Law (2010), 4–9.

6 This distinction between the context of discovery and the context of justification originated in the philosophy of science, K. Popper, The Logic of Scientific Discovery (1959), and was applied to legal theory by Richard Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (1961).

7 Macaulay, supra note 2, at 369.

8 See, generally, M. J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (1992); W. M. Wiecek, The Lost World of Classical Legal Thought (1998).

9 See, e.g., Coppage v. Kansas, 236 US 1 (1915); Lochner v. New York, 198 US 45 (1905).

10 See Wiecek, supra note 8, at 12.

11 See Horwitz, supra note 8, at 170.

12 See Wiecek, supra note 8, at 13–14.

13 F. Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009), 125.

14 See Wiecek, supra note 8, at 7.

15 For a comparison of American and Scandinavian legal realism, see Alexander, G. S., ‘Comparing the Two Legal Realisms – American and Scandinavian’, (2002) 50 American Journal of Comparative Law 131CrossRefGoogle Scholar.

16 J. Frank, Law and the Modern Mind (1930), Chapter 6.

17 Ibid., at 283–306.

18 See, e.g., Pound, R., ‘Mechanical Jurisprudence’, (1908) 8 Columbia Law Review 605CrossRefGoogle Scholar; Pound, R., ‘Law in Books and Law in Action’, (1910) 44 American Law Review 12Google Scholar.

19 See, e.g., C. A. Beard, An Economic Interpretation of the Constitution of the United States (1913).

20 Interestingly, the different varieties of ‘law and’ are increasingly prominent in Europe, as evidenced by the tenth anniversary conference of the European Society of International Law, held in September 2014, which had as its theme, ‘international law and . . .’

21 See, in particular, Holmes, O. W., ‘The Path of the Law’, (1897) 10 Harvard Law Review 457, at 824.Google Scholar

22 See also B. Cardozo, The Nature of the Judicial Process (1921), 129 (‘In countless litigations, the law is so clear that judges have no discretion’). As Cardozo put it, ‘A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation must contain within itself the seeds of fallacy and error.’; Ibid., at 126–7.

23 Horwitz, supra note 8, at 187–8.

24 Cohen, F., ‘Transcendental Nonsense and the Functional Approach’, (1935) 35 Columbia Law Review 809CrossRefGoogle Scholar.

25 In general, legal realists believed that judicial decision-making could be predicted based on a case's underlying ‘situation-type’. Leiter, B., ‘Rethinking Legal Realism: Toward a Naturalized Jurisprudence’, (1997) 76 Texas Law Review 267, at 283Google Scholar.

26 Ibid., at 278.

27 See, e.g., Kozinski, A., ‘What I Ate for Breakfast and Other Mysteries of Judicial Decision Making’, (1992–1993) 26 Loyola Los Angeles Law Review 993Google Scholar. This view is usually attributed to Jerome Frank, although it does not appear he ever actually said it. See Schauer, supra note 13, at 129. It is often derided as emblematic of the excesses of legal realism, but a recent study found that experienced parole judges are, in fact, influenced by what they eat. Danziger, S., Levav, J., and Avnaim-Pesso, L., ‘Extraneous Factors in Judicial Decisions’, (2011) 108 Proceedings of the National Academy of Sciences 6889CrossRefGoogle ScholarPubMed. This result is consistent with more general psychological research showing that what people eat can have a significant effect on their behaviour. See, e.g., Isen, A. M. and Levin, P. F., ‘Effect of Feeling Good on Helping: Cookies and Helping’, (1972) 21 Journal of Personality & Social Psychology 384CrossRefGoogle Scholar.

28 Leiter, supra note 25, at 269.

29 Holmes, supra note 21, at 461.

30 G. Shaffer, ‘The New Legal Realist Approach to International Law’, in this issue, at [page]; M. S. Green, ‘Legal Realism as a Theory of Law’, (2005) 46 William and Mary Law Review 1915.

31 See Leiter, supra note 25, at 296 (legal realists viewed the law as ‘locally indeterminate’ rather than ‘globally indeterminate’). See also M. S. Green, ‘Leiter on the Legal Realists’, (2011), available at

<http://scholarship.law.wm.edu/facpubs/1365> (accessed 3 February 2015).

32 It should be emphasized, however, that these human ends can include non-human values, such as the protection of nature for its own sake.

33 The International Law Association has just completed an exercise along these lines, adopting Legal Principles Relating to Climate Change at its meeting in April 2014. Similarly, the International Law Commission decided in 2013 to include the topic, ‘protection of the atmosphere’, in its programme of work.

34 P. Birnie, A. Boyle, and C. Redgwell, International Law and the Environment (2009); P. Sands and J. Peel, Principles of International Environmental Law (2012).

35 See generally Koh, H. H., ‘Twenty-First Century International Lawmaking’, (2013) 101 Georgetown Law Journal 725Google Scholar, at 746 (‘Twenty-first century lawmaking is not limited to traditional “lawmaking” in the sense of drafting codes and static texts, so much as it is a process of building relationships to foster normative principles in new issues areas, leading to “soft law”, “regime-building”, and sometimes crystallizing into legal norms . . . Twenty-first-century international lawmaking is not a rote checklist of traditional hornbook tools. . . .. Instead, it includes a living, breathing human tapestry of meetings, relationships, and other communications . . .’).

36 Handl, G., ‘Transboundary Impacts’, in Bodansky, D., Brunnée, J., and Hey, E. (eds.), The Oxford Handbook of International Environmental Law (2007), 531, at 548Google Scholar.

37 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 242.

38 Schachter, O., ‘The Emergence of International Environmental Law’, (1991) 44 Journal of International Affairs 457Google Scholar, at 462–3; see also Merrill, T. W., ‘Golden Rules for Transboundary Pollution’, (1997) 46 Duke Law Journal 931CrossRefGoogle Scholar, at 937 (‘With isolated exceptions, transboundary pollution as such is subject to very little effective regulation.’)

39 A. Chayes, The Cuban Missile Crisis: International Crises and the Role of Law (1974).

40 Chayes, A., ‘Remarks’, (1963) 57 Proceedings of the American Society of International Law 10, at 11Google Scholar.

41 Ibid., at 12.

42 Ibid., at 11.

43 W. M. Reisman and A. M. Schreiber, Jurisprudence: Understanding and Shaping Law (1987), 3.

44 For a discussion of Reisman's work, on which this paragraph draws, see Bodansky, D., ‘Prologue to a Theory of Non-Treaty Norms’, in Arsanjani, M. H.et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2011), 119Google Scholar.

45 See Macaulay, supra note 2, at 388 (arguing that the ‘new’ legal realism is characterized by a greater focus on the living law and on the study of law from the bottom up).

46 S. Pinker, ‘Steven Pinker, Leon Wieseltier Debate Science vs. the Humanities,’ New Republic (26 September 2013).

47 H. Kelsen, Pure Theory of Law (1967), 30.

48 Ibid., at 26

49 Ibid., at 36. Ironically, Pinker himself has provided empirical support for Kelsen's claim. In The Better Angels of Our Nature: Why Violence Has Declined (2011), he argues that the incidence of violence has steadily declined over time, in part due to the role of the state in limiting the use of force.

50 Klabbers, J., ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’, (2004/2005) 1 Journal of International Law and International Relations 35Google Scholar.

51 Ibid., at 40.

52 Jennings, R. Y., ‘The Identification of International Law’, in Cheng, B. (ed.), International Law: Teaching and Practice (1982), 5Google Scholar.

53 For efforts along these lines, see Cohen, H. G., ‘Finding International Law: Rethinking the Doctrine of Sources’, (2007) 93 Iowa Law Review 1Google Scholar; Bodansky, supra note 5, Chapters 8–9.

54 See M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).

55 See Blank, supra note 4, at 641.

56 Ibid., at 634.

57 Ibid., at 663.

58 Macaulay, supra note 2, at 391 (quoting Marc Galanter).

59 See Nourse, V. and Shaffer, G., ‘Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?’, (2009) 95 Cornell Law Review 61Google Scholar, at 134–5; Shaffer, G., ‘New Legal Realism in International Law’, in Mertz, E., and Merry, S.E. (eds.), Studying Law Globally: New Legal Realist Perspectives Vol. II (2015, forthcoming)Google Scholar (draft on file).

60 Mansfield, H., ‘On the Majesty of the Law’, (2012) 36 Harvard Journal of Law and Public Policy 117, at 123Google Scholar; see also L. L. Fuller, The Morality of Law (1969).

61 See Mansfield, supra note 60.

62 Ibid.

63 John Dewey, for example, wrote that law is best seen as a social science. J. H. Schlegel, American Legal Realism and Empirical Social Science (1995), 8.

64 See Klabbers, supra note 50, at 36, 42.

65 M. Reisman, Folded Lies: Bribery, Crusades, and Reforms (1979), 15–36.

66 E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (1975), 259–70.