Editorial
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Abstract
When the editors of this Journal tried to define the raison d'être of their enterprise, one premise was met with instant agreement: we shared the conviction that there is `a European tradition in international legal scholarship ... characterized by a strength in, and sensitivity to, doctrine and theory, by a strong awareness of history and its role in the development of international law, and, in recent decades, by an inbuilt respect for pluralism of approaches and the value of diversity'.1
The way in which we attempt to translate this conviction into action consists of a deliberate `opening' of the Journal toward innovative, original, and, above all, challenging contributions to the theory of international law. Fortunately, this opening has coincided with a remarkable renewal of interest in such theory. More and more voices question the status quo of international legal scholarship. One does not have to be a follower of the critical legal studies movement in the United States to sympathize with David Kennedy's sharp reaction to his first exposure to the mainstream of our discipline: `[N]o one seemed to think international legal theory could offer more than an easy patois of lazy justification and arrogance for a discipline which had lost its way and kept its jobs.'2 The time for re-examination of international legal theory is ripe indeed. It is ironic to note that precisely the branch of jurisprudence where the impact of factors like power, time, history, diversity of language and culture is most obvious, has remained in a state of theoretical dormancy, while domestic legal theory has been constantly shaken and enriched. Mainstream thinking in international law - epitomized in Prosper Weil's somber warnings against `relative normativity'3 - appears to continue to adhere to legal positivism of a variety which, `out there' in the living world of the philosophy and theory of law, has definitely been judged as unable to maintain its own epistemological premises.
Nowhere is this ostrich-like refusal to acknowledge the theoretical state of the art more striking than in the established views on international law-making, and here particularly in the theory of customary international law. To state that customary law finds itself in the midst of an identity crisis4 is to put it mildly. While the classic formula of the so-called two elements of customary law is still being repeated with the monotony of a Tibetan prayer-mill by most mandarins of our profession, apparently to preserve the confidence of the believers (above all, of course, the practitioners), quite a few of the high priests seem to have themselves lost faith.5 Thus, the recent (ninth) edition of the treatise which is probably most widely used among international legal practitioners, at least in the English-speaking world, manages to spell out the established wisdom on customary international law in little more than five (out of 1300) pages without even mentioning any doubts as to its continuing viability6 while one of its editors, no less than the current President of the International Court of Justice, noted a decade ago that the orthodox tests for the existence of customary law were `outworn and inadequate' and that `most of what we perversely [sic] persist in calling customary international law is not only not customary law: it does not even faintly resemble a customary law'.7 As to the practice of the International Court itself, which is still going through the formal motions of Article 38 and repeating the traditional mantras, more and more of its legal conclusions are determined `by the application of rules of law largely treated as self-evident'.8 Let there be no misunderstanding: what I see at work here is entirely acceptable judicial reasoning. It is only that the theory of customary international law finally has to get rid of its 19th century blinders and open the door to legal hermeneutics and linguistic theory.9 The process of customary `law-making' is far from complete when the States hav
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