Groundwork for International Law

108 American Journal of International Law 650 (2014)

Northwestern Public Law Research Paper No. 15-30

30 Pages Posted: 15 May 2015

Date Written: 2014

Abstract

Papers related to this article can be found at: http://ssrn.com/abstract=2606348; http://ssrn.com/abstract=2606362; http://ssrn.com/abstract=2606389

International customary law has suffered from indeterminacy. It was an art of expertise judgment whether a given action added to the practice of states or was in violation of that practice. Moreover, traditional methodology made it impossible to figure out how state practice got started or how it could ever be changed. The present article offers for the first time an objective method of ascertaining rules of customary law: when there is an interstate dispute, pick the rule that offers greater long-term stability. This article looks at law from the inside — as a mechanism for perpetuating itself. Law therefore exhibits a propensity to absorb and amplify rules that cohere better with stability than with anarchy or chaos.

Keywords: general systems, autopoiesis, customary international law, persistent objector, opinion juris, domestication, special custom, conflict resolution

JEL Classification: K10, K19, K30, K33

Suggested Citation

D'Amato, Anthony, Groundwork for International Law (2014). 108 American Journal of International Law 650 (2014); Northwestern Public Law Research Paper No. 15-30. Available at SSRN: https://ssrn.com/abstract=2606351

Anthony D'Amato (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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