Abstract
B.S. Chimni's study of customary international law (CIL) is a review of its role both as a supporter of the existing global capitalist order and as a potential instrument to challenge that order in favor of a postmodern deliberative reasoning as the shaper of a new CIL. It has been my view, since the The Decay of International Law? in 1986, that general customary international law is not an intelligible concept and not actually used in practice to demonstrate empirically the existence of any rule of law. I follow Hans Morgenthau, who wrote in 1940 in the American Journal of International Law that the manner in which the International Court of Justice (ICJ) uses this concept is to decide what it likes and call it customary law. I reiterated this view in my review of the ICJ in the first edition of my Philosophy of International Law in 2007. While Chimni quotes my writings on general custom frequently and very positively in his article, this is always to support a progressive customary law and never to do what I would propose, which is to make a complete break with CIL in favor of an independent approach to the problems it is supposed to answer.
Highlights
I reiterated this view in my review of the International Court of Justice (ICJ) in the first edition of my Philosophy of International Law in 2007.4 While Chimni quotes my writings on general custom frequently and very positively in his article, this is always to support a progressive customary law and never to do what I would propose, which is to make a complete break with customary international law (CIL) in favor of an independent approach to the problems it is supposed to answer
The “modern” view of custom, which Chimni distinguishes from the traditional approach to CIL, dispenses with the material aspect of custom and points to the virtually uncontested views of a unified world capitalist class, where the Third World statesmen and scholars are very largely preempted by a mixture of power and ideas, which Gramsci has already categorized as a hegemonic system.[10]
These views are adequately expressed in the subjective element of custom, which suffices on its own. Chimni opposes to this his postmodern deliberative approach as the new formulation of the subjective element of custom, which will at least contribute to the progressive development of international law.[11]
Summary
B.S. Chimni’s study of customary international law (CIL) is a review of its role both as a supporter of the existing global capitalist order and as a potential instrument to challenge that order in favor of a postmodern deliberative reasoning as the shaper of a new CIL.[1] It has been my view, since the The Decay of International Law? In 1986,2 that general customary international law is not an intelligible concept and not used in practice to demonstrate empirically the existence of any rule of law. Drawing on the German historical school of law, law is seen as the history of a national
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