Customary International Law 2.0
Abstract
Throughout history, customary law has been legitimized as an instrument to put the power of law behind the aggregated, collective judgment of citizens. Technological advances in communication have created a world where such collective judgments are easier to identify and apply than ever before. Unfortunately, the current regime design of customary international law formation is tethered to a fiction of state consent that is subjecting the system to creeping anachronism.
This Article offers an alternative theoretical “version” for understanding and justifying the creation of customary international law norms. Consistent with the software versioning invoked in the title, this rethinking of customary law formation is consistent with the spirit and purpose of customary international law, but utilizes a major rethinking of the theoretical and empirical mechanisms used to animate customary international law as a functioning body of law. Instead of scholarly and institutional edict, CIL2 rests its case on recent developments in communication theory and the epistemic advantages offered through interactive media. The result is a truer, more dynamic, and thus more effective body of customary law that proves capable of responding to the fundamental challenges facing the current legal regime.