The end of customary international law? : a purposive analysis of structural indeterminacy
Where CLS, and other critical discourses, seek to “uncover” and “explode” the ideologies and biases of law, to demonstrate its inability to fulfil its promises, the present work is intended to initiate the task of demanding that law, and especially CIL, live up to those very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided, or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematised; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. This thesis argues that CIL is best understood as an independent system of rules, against which state conduct may be assessed; rather than as a necessarily authoritative institutional reality. This highlights the distinction between law-creative, and merely legally evaluable, state actions. The theory presented in the final chapter - which is developed from the methodology outlined in the preceding four chapters - acts as a lens through which those actions of states which alter or develop CIL may be distinguished from those actions which ought, merely, to be judged in the light of CIL. This allows us to distinguish legal from illegal state conduct, regardless of the absence or presence of enforcement. This distinction between the legal and the illegal is distinct from, analytically prior to, and more important than, the enforcement of legal commands.