Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (Their) Ideology in Custom Making
Rajkovic, Aalberts and Gammeltoft-Hansen (eds.), Power of Legality: Practices of International Law and their Politics, CUP, 2016.
21 Pages Posted: 29 Jul 2015 Last revised: 7 Jul 2016
The paper suggests two arguments in relation to the role played by international courts and judges in international custom making. First, scholarship has extensively debated the methods that courts shall apply to identify the existence of custom. However, little attention has been paid to the fact that, while identifying customary rules, judges (re-)define custom as a “matrix”, i.e. the process leading to the customary rule, that is, the definition of custom as a source of law. Because interpretation is inherently subjective, custom as a source of international law may be exposed to and even be dependent on the theoretical and ideological preferences of courts/judges. As a consequence, these agents may be also proven to be influencing the content of the customary rule, that is, affect the normative output of that source. Second, de facto, judges/courts have the authority to act as a substitute to the absence of formalism in custom making. They have the authority to formally recognise the existence (i.e. legal validity) of a customary rule. In the absence of the Hartian rule of recognition in international law, we resort to agents, such as international courts, having the authority to juris dicere, i.e. to tell what the law is. Thereby, customary rules acquire an objective content and existence, irrespective of the subjective perception and understanding states may have of them.
Keywords: international customary law, sources of international law, international legal positivism, Hart, rule of recognition, judicial recognition, international law making, sources of international law, international custom, custom identification
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