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http://ssrn.com/abstract=1474037
 
 

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Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule


William S. Dodge


University of California Hastings College of the Law

September 15, 2009


Abstract:     
This essay examines the origins of the later-in-time rule with respect to customary international law. It shows how seemingly contradictory statements in the early cases about whether statutes could supersede the law of nations as a rule of decision are largely explained by the existence in the late eighteenth century of more than one category of unwritten international law. Vattel’s Law of Nations recognized a “voluntary law of nations” based on natural law from which nations could not depart and a “customary law of nations” based on state practice from which they could. The essay goes on to sketch three shifts in the American understanding of the law of nations during the nineteenth century: (1) the shift from natural law to positivism; (2) the shift from individual consent to general consent; and (3) the shift from monism to dualism. All these changes were reflected in the Supreme Court’s Paquete Habana decision at the turn of the twentieth century. And these changes, in combination with The Paquete Habana’s “controlling...legislative act” dictum set the stage for the adoption of the later-in-time rule during the twentieth century.

Number of Pages in PDF File: 28

Keywords: customary international law, later-in-time, Vattel

JEL Classification: K33

working papers series


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Date posted: September 15, 2009 ; Last revised: November 12, 2012

Suggested Citation

Dodge, William S., Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule (September 15, 2009). Available at SSRN: http://ssrn.com/abstract=1474037 or http://dx.doi.org/10.2139/ssrn.1474037

Contact Information

William S. Dodge (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States
415-565-4830 (Phone)
415-565-4865 (Fax)

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