Bodansky: Prologue to a Theory of Non-Treaty Norms

Daniel Bodansky (Univ. of Georgia - Law) has posted Prologue to a Theory of Non-Treaty Norms (in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, ed. Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane & Siegfried Wiessner, forthcoming). Here's the abstract:

This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.