Traditional and Modern Approaches to Customary Law: A Reconciliation
Author(s)
Roberts, Anthea Elizabeth
Abstract
There are two contemporary approaches to the determination of customary international law: the “traditional,” which emphasizes state practice, and the “modern,” which emphasizes opinion. This article proposes a theory of custom that incorporates both approaches. It rejects analyzing custom on a “sliding scale” in favor of a reflective interpretive approach that reconciles the descriptive and normative justifications for traditional and modern custom.
