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Chung on Contract versus Status as Explanations of Customary International Law

By Lawrence Solum

John J. Chung (Roger Williams University - School of Law) has posted The Questionable Use of Contract, Instead of Status, to Explain Customary International Law on SSRN. Here is the abstract:

Customary international law (?CIL?) forms the foundation of international law. Yet, there is considerable disagreement as to its formation and content, and it has been described as an incoherent mess. Many of the attempts to explain CIL are based on analogies to the law of Contracts, with states likened to parties entering into express or implied contracts. This approach asserts that CIL is the result of the exercise of sovereign state autonomy, free will and consent. The analytical framework of CIL has been structured as an ?either or? choice between a state of nature versus contract-based ordering. I contend that this is a false, binary choice, and propose an alternative. Instead of looking to contracts, I suggest that the analysis should look to the basis of social ordering before Contract: Status. My analysis draws upon Henry Maine?s famous observation that ?the movement of the progressive societies has hitherto been a movement from Status to Contract.? By this, he meant that many pre-modern societies were organized and governed under principles of status relationships. Several influential commentators have described international law as a primitive system. As such, CIL should be analyzed through a theoretical model that is applicable to such systems , a model based on Status. To develop this thesis, this paper (among other things) discusses the role of power in international law, draws upon the work of legal anthropologists, and examines the ethnocentric biases underlying the use of Contract and the neglect of Status to explain CIL.

Full post as published by Legal Theory Blog on August 25, 2010 (boomark / email).