Reconstructing International Law as Common Law
54 Pages Posted: 23 Jan 2015
Date Written: January 21, 2015
This Article demonstrates that the predominant critique of international law as useless to assess international behavior overreaches. Threatening the integrity of international law, proponents of this critique, which includes leading international law scholars, conclude that “international law” masks an international politics. This politics operates by means of the technical idiom of competing self-contained treaty regimes addressing the various areas of international legal regulation. This Article demonstrates that this critique of international law is internally inconsistent. It explains that the critique’s juxtaposition of international politics with international law is inconsistent with the postmodern practice of deconstruction upon which their critique relies, meaning that the premise of the critique cannot be defended on its own terms. The Article next recalibrates the critique. It shows that rather than proving that international law is invalid, the critique actually demonstrates that international law functions like a common law. This means that international law follows an inductive rule-establishment process. An inductive process establishes norms on the basis of factual regularity. This Article will show that good faith drives this inductive rule establishment in international law. Good faith coordinates and translates how international law takes account of a wide variety of facts for purposes of establishing a rule and for assessing the violation of a rule. It does so by placing these facts in the context of what emerges as the core goal of international law: the protection of the legitimate differences in interest, experience, and perspective of the subjects international law intends to govern.
Keywords: International Law; jurisprudence
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