Harmonizing Values, Not Laws: The CISG and the Benefits of a Neo-Realist Perspective

Abstract

Legal Realism has been deemed as one of the most important jurisprudential movements in Western society during the twentieth century.2 This group, which was by no means coherent, flourished particularly in the 1920s and 1930s at Yale and Columbia law schools, originated with such scholars as, Oliver Wendell Holmes, John Chipman, and Karl Llewellyn.3 Although it has been thought that Realism is “dead”, having been put to rest by H.L.A. Hart’s derisive critique,4 there has been renewed interest in the subject in recent years.5 While it is difficult to speak of a single, comprehensive theory belonging to this group, certain unifying themes can be discerned from the writings of the Realists’, particularly those that concern rule-skepticism and the indeterminacy of law.6 At the risk of simplifying the Legal Realist perspective, the conventional view holds that Legal Realism is a theory7 that law is based, not on formal rules or principles, but instead on judicial decisions that originate from social interests and public policy. In other words, beneath a veneer of scientific and deductive reasoning of “mechanical jurisprudence”8 are legal rules and concepts—that is, legal doctrine—that are often indeterminate, and these are rarely as neutral as they appear. In the words of Hart, the Realists’ theory of law holds the view that “talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them”.9 This Realist theory of law is usually analyzed solely within the context of domestic case law and jurisprudence. But how does the Realist theory of law apply in a global setting, that is, within the context of international law? Particularly, would the Realists have us believe that efforts to create uniform national laws through international treaties or conventions are subject to the same degree of uncertainty as domestic rule-making? In other words, can international conventions be as indeterminate as domestic legislation? Considering that the objective of uniform law conventions is to standardize judicial rule-making across jurisdictions appears to directly challenge the Realist notion that such laws are too indeterminate to be a significant influence on, or predictor of, a judges’ decision, how do we explain the development of functional uniformity10 in legal doctrine related to an international convention?