Articles

• Carty, Anthony

Abstract

The concepts of <it>general customary law</it> and <it>the state</it> are crucial to the structure of the international legal order. They suppose the state is a unified entity, with a single will, which can, in co-ordination with other states, create explicit (treaty) or tacit (customary) international law. Ross adopts a social-psychological causal approach to explain how these supposedly hard positive law concepts are in fact decadent remnants of idealist, natural law provenance. This means lawyers use the language of <it>state will</it> and <it>general custom</it> to express their belief that international legal rules exist. However, this process actually reflects unconsciously, socially induced compulsions. The language of law is one of rationalization. It attaches legal labels to social practices that are of no normative value or significance. However, Ross appears to blink in the face of his own nihilism and recommends that judges, in their decision-making, can best articulate the way any society considers itself to become bound by law. The argument preferred here is that he should instead have carried his analysis further, to a credible political and cultural sociology of international relations. What this might mean is illustrated with respect to the writing of Raymond Aron and some critical theory reflections on French international law positivism. With consistent Scandinavian realism, a credible normative perspective on international society disappears altogether. This may be how it should be. However, the argument here concludes with an attempt to introduce a reflective critical dimension to sociological realism not through normative and analytical positivism, but through phenomenological analysis.