The Prescribing Function in World Constitutive Process: How International Law is Made

Abstract

No problem has proved more refractory to lawyers and scholars than understanding and explaining how international law is made. Domestic analogues, whose explanatory power may be inadequate even in their own contexts, have so little relevance to the complexities of international politics that those who invoke them finish either by throwing up their hands and conceding that the model is inappropriate for the task or by painting themselves into the palpably absurd position that there is no international law. But, of course, there are many effective international norms. To gainsay such norms because of a theory is a grotesque caricature of understanding and scholarship. As the world becomes more pervasively transnational and interdependent, an understanding of how international law is made and, even more to the point, of how to make it, becomes a matter of greatest practical urgency. In any community how law is made immensely affects the shaping and sharing of all values.