Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (their) Ideology in Custom Making

Tzevelekos, V ORCID: 0000-0002-5091-3786 (2016) Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (their) Ideology in Custom Making. In: The Power of Legality. Practices of International Law and their Politics. Cambridge University Press, pp. 188-208. ISBN 9781107145054

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Abstract

The power of legality in the context of custom making The editors of this book have invited scholars to contribute, with arguments and examples, in aiding to demonstrate how legality is built at the international level. According to their proposition, legality has the potency to bridge the artificial dichotomies between politics and law, legal idealism and political realism, or normativity and empiricity. Rather than deriving from legal formalism, the power of legality stems from the practice of all involved actors (including international courts and their judges that are central to this chapter) and how this is shaped from their shared assumptions, doctrines and values about the law. Thus, legality derives from and ultimately amounts to international practice, which may be understood as competent performances that order our social world through creating symbols and giving meaning to actions. The association of legality with international practice explains why the former is constantly re-produced. Communities of actors, including institutions such as international courts and tribunals, incessantly develop practices. This is an appealing intellectual scheme that could also be understood as a theory. Be it truthful, such a theory would contradict one other argument the editors make when they criticise the Cartesian duality distinguishing between theory and reality that validates or invalidates a theory on the basis of its effectiveness in the real world. However, rather than a theory, that motivating approach may be perceived as an “anti-theory” and a hypothesis at the same time. As an “anti-theory”, it calls scholars to abstain from founding their analysis on a priori theories, that is, on pre-established knowledge and old academic schemes that reflect practices of the past, some of which may have been abandoned, whereas others may still survive the test of time. Likewise, the evolution of social practices cannot leave legality or theories about legality unaffected. Besides, this is why legality is perpetually re-produced through practices. As a hypothesis, this approach invites scholars (as practicing actors) to employ a methodology that conceptualises what the editors call a “bottom up” course. This consists of studying “concepts and categories […] as they are produced by the relevant actors in/of the field.” The study of these practices leads to an interpretation as to how these practicing actors (and especially the ones having the authority to do so) perceive and construe, and thereby construct, legality - also through recognition and validation.

Item Type:	Book Section
Additional Information:	Source info: Rajkovic, Aalberts and Gammeltoft-Hansen (eds.), Power of Legality: Practices of International Law and their Politics, CUP, 2016.
Uncontrolled 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
Depositing User:	Symplectic Admin
Date Deposited:	15 Jul 2016 10:10
Last Modified:	16 Mar 2024 09:38
DOI:	10.1017/CBO9781316535134.008
Related URLs:	Publisher
URI:	https://livrepository.liverpool.ac.uk/id/eprint/3002341