6 Self-destruction

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
The Self ◽  
Customary International Law ◽  
Legal Thought ◽  
Modern Thinking

This chapter claims that international legal thought and practice are replete with self-destructive claims about customary international law. It discusses the discursive performance that mirrors a very common feature of modern thinking and commonly nurtured rejuvenation through self-defeat, highlighting international legal thought and practice that contain plenty of manifestations of discursive self destruction. It also mentions the discursive performance found in the discourse on customary international law. The chapter reviews the multiple materializations of the self-destructive moves in the discourse on customary international law. It shows that a discursive performance constitutes a mode of administering the doctrine of customary international law and that the repeated findings of malfunctioning of customary international law carry elaborate and fine representations.

7 Self-confirmation

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
The Self ◽  
Customary International Law ◽  
Legal Rules ◽  
Modern Thinking

This chapter talks about the move into self-confirmation as one of the most central discursive performances witnessed in arguments about customary international law. It explains that self-confirmation refers to the fact that testing the customary character of a rule entails an identity-check whereby the 'outside' world is interrogated according to a predetermined standard. It also mentions ascertaining practice and opinio juris amounts to a process of verifying a pre-existing representation of practice and opinio juris that is postulated by the rule whose customary status is being tested, demonstrated, or contested. The chapter considers self-confirmation as a common feature of modern thinking. It elaborates on the concrete implications of the self-confirmation at the heart of any argument about the customary status of international legal rules.

10 The Empire of Rules

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Customary International Law ◽  
Legal Thought ◽  
The Law ◽  
Rule Making

This chapter considers the constant deference to the idea of rule as the most ordinary discursive performance witnessed in the discourse on customary international law. It examines how the idea of rule dominates most arguments about customary international law, be them pertaining to the identification of customary international law or to the law that has been identified as having a customary status. It also cites the custom-formative process and the product of that process that are understood in terms of rules in international legal thought and practice. The chapter describes customary international law as a rule-governed rule-making process wherein there are rules on the identification of customary international law as well as rules of customary international law. It formulates some observations on the pull of the ruleness witnessed in the discourse on customary international law.

The Discourse on Customary International Law

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Customary International Law ◽  
Textual Space ◽  
Ancient Law ◽  
Traditional Societies ◽  
Discursive Constructions ◽  
Law Making ◽  
Modern Thinking

This book argues that it does not suffice to simply invoke and demonstrate the two constitutive elements of customary international law, practice and opinion juris, to successfully and plausibly make a claim under the doctrine of customary international law. Behind what may look like a very crude dualist type of legal reasoning, a fine variety of discursive constructions are at work. By unpacking these discursive constructions, the book depicts the discursive splendour of customary international law. It reviews eight discursive performances at work in the discourse on customary international law and makes a number of original and provocative claims about this aspect of law. For example, the book claims that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, the splendour of customary international law is everything but ancient. In fact, there is hardly any doctrine of international law that contains so many of the features of modern thinking. The book also puts forward the idea that all discursive performances of customary international law are shaped by texts, are articulated around texts, echo and continue pre-existing texts, unfold in a textual space, or, more simply, originate in a text-constituted environment.

2 The Enabling Constraint

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
20Th Century ◽  
Customary International Law ◽  
Legal Thought

This chapter recounts the rise, consolidation, and fluctuation of the enabling constraint of the discourse on customary international law. It sets the stage for the discussion of the discursive performances that enabling constraint has prompted in international legal thought and practice. It also talks about the distinction between the two elements of customary international law: practice and opinio juris, which corresponds to a form of dualist thinking that came to thrive with modernity. The chapter describes dualist thinking about customary international law as a constraint that was formalized in the middle of the 20th century and that does not necessarily correspond to any ancient mode of thinking about customary international law. It shows that the dualist approach to the identification of customary international law has undergone a few variations over the last hundred years but uncontested in international legal thought and practice.

1 Introduction: The Modern Splendour of Customary International Law

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Creative Process ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Thought ◽  
Formal Requirement

This chapter depicts the discursive splendour of customary international law, which is portrayed as a splendid mechanism by virtue of the sophisticated discursive performances it enables and demands. It introduces the success and plausibility of any argument about customary international law in international legal thought and practice that commonly hinge on a myriad of discursive performances. It also sheds light on the discursive splendour of a legal doctrine that is too often perceived as miserably simple, plain, or malfunctioning doctrine. The chapter provides an overview of the discursive performances of customary international law, which are construed as responses to the formal requirement of ascertaining the constitutive elements of customary international law. It elaborates how the customary international law provides international law with a law-creative process that is not dependent of the adoption of a formal written instrument.

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