Realizing Utopia as a Scholarly Endeavour

The article defends ‘critical’ or ‘ideational’ positivism and explains why and how it can be conductedsuccessfully as legal scholarship. In order to accumulate replicable intersubjective knowledge, legalscholarship should focus less on concrete applications of law, but needs to generate theories in thesense of models that express the patterns of data in the field under observation as parsimoniouslyand concisely as possible, and thereby reduce complexity. The article then discusses how scholarlycontribution to law reform can be explained doctrinally and how it can be justified in normativeterms. International legal scholars cannot and should not ‘make’ international law in the samesense as governments, because they largely lack the legitimizing factors of representativity, participation,publicity, and accountability. The authority of scholars is not an institutional, procedural,or social one, but purely an epistemic one. Legal academic activity is inescapably political. Scholarsshould find a middle ground between the unrealistic postulate of value-freedom (Wertfreiheit) andunbounded evaluation. International legal practice supports international legal scholarship, notablyby providing a ‘reality check’. Scholarship can inversely support practice by pursuing a via mediabetween infertile alienation from and fetishism with practice. To do so successfully, applied legalresearch must be complemented by foundational research. Secondly, doctrinal analysis should becomplemented by empirical, ethical, and theoretical research. And, thirdly, the typical indeterminacyand dynamics of international law suggest the complementing of positive analysis by normativeanalysis, because purely positive analysis engenders a false security. The article concludes thatthe programme of a ‘realistic’, as opposed to an ‘illusionary utopia’ is the province of legal scholars.