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

29 Pages Posted: 15 Sep 2009 Last revised: 22 Dec 2015

William S. Dodge

University of California, Davis - School of Law

Date Written: 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.

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

JEL Classification: K33

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: https://ssrn.com/abstract=1474037 or http://dx.doi.org/10.2139/ssrn.1474037

William S. Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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