Traditional and Modern Approaches to Customary International Law: A Reconciliation
American Journal of International Law, Vol. 95, p. 757, 2001
36 Pages Posted: 5 Dec 2009 Last revised: 23 Aug 2013
Date Written: October 1, 2001
There are two contemporary approaches to the determination of customary international law: the "traditional," which emphasizes state practice, and the "modern," which emphasizes opinio juris. This article proposes a theory of custom that incorporates both approaches. It rejects analyzing custom on a "sliding scale" in favor of a reflective interpretive approach that reconciles the descriptive and normative justifications for traditional and modern custom.
Keywords: Custom, International law, Customary international law, traditional, modern, descriptive, normative, state practice, opinio juris, Dworkin, Kirgis, Tasioulas, Rawls, Fit, Substance, Sliding scale, Reflective equilibrium
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