The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have on the international system. “Conceptual stretching” is an idea coined by the social scientist Giovanni Sartori to describe the distortions that result when established concepts are introduced to new cases without the required accompanying adaption. This idea is important to the discussion because the current conceptualization of customary international law, relying as it does on the dual attributes of state practice and opinio juris, is “conceptually stretched.” Utilizing Sartori’s “ladder of abstraction,” a new framework for studying customary international norms can be utilized, one which looks to general theories of norm formation instead of focusing on customary international law and its dual attributes of state practice and opinio juris. In pursuing this line of inquiry, the idea of “legal recursivity” is especially promising and can be seen as a more apt description of how, in a new international system dominated by norm-generating transnational actors, international norms develop and operate. First proposed by legal sociologists Terence Halliday and Bruce Carruthers, “legal recursivity” examines how norms can be exchanged and transferred between the transnational governmental, quasi-governmental, and non-governmental institutions within the international community as a whole, and domestic states.
Roozbeh (Rudy) B. Baker,
Customary International Law: A Reconceptualization,
41 Brook. J. Int'l L.
Available at: https://brooklynworks.brooklaw.edu/bjil/vol41/iss2/1