Skip to main content
State Practice as Metaphor: A Reconciliation Approach
State Practice & International Law (2014)
  • Patrick Kelly, Widener University - Delaware Campus
State practice as metaphor is a broader idea than the empirical role of state practice in the formation of custom. State practice as used in this journal is a metaphor for all the methods and processes to increase the democratic legitimacy of international norms including not only the practices of states, but also other forms of representation by which citizens express their views. Increasingly norms are articulated and influenced by non-governmental organizations, private standard setting groups, quasi-public entities such as the Inter-Parliamentary Union and transgovernmental organizations such as the Basle Committee on Banking Supervision. With the advent of the internet, Facebook and Twitter empower crowd sourcing, instant organization and new methods of norm articulation that have the capacity to transform domestic and global political processes.
State practice as metaphor at a minimum encompasses state participation, input and influence in lawmaking whether in the CIL process, multilateral treaty making or ongoing norm articulation in treaty regimes. State practice by governments with all their flaws is the means by which governments, as representatives of their people, contribute to and accept legal norms. Voting and electoral politics may generally be the best barometers of democratic legitimacy, but they are not sufficient to assure democratic legitimacy. National governments can control and manipulate the voting process, be violent and illiberal as Fareed Zakaria reminds us. While many governments are less than democratic, they remain the primary means of broad-based representation to legitimize international law. NGOs and civil society are playing an increasing and important role in informing and influencing norm formation. However, many of these organizations as advocates and representatives of a particular point of view are narrowly focused and, as hierarchical institutions, may not be particularly representative either of their own membership or the societies from which they came. Transgovernmental organizations may be seen as both a form of representation and as exclusive clubs with limited representation. Yet each of these forms of representation whether by governments, NGOs or otherwise has a role to play in the movement toward more democratically legitimate lawmaking.
  • International law,
  • customary international law,
  • legitimacy,
  • democracy,
  • norm formation
Publication Date
April, 2014
Citation Information
Patrick Kelly. "State Practice as Metaphor: A Reconciliation Approach" State Practice & International Law Vol. 1 (2014) p. 1
Available at: