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date: 18 January 2020

Abstract and Keywords

This chapter begins by examining the case for legal positivism. Legal positivism is understood as the thesis that the existence of law is a matter of its social source, regardless of its merits. Descriptive, normative, and conceptual arguments are considered, with the aim of demonstrating that what follows for the sources of international law from the commitment to positivism depends on the specific defence offered for accepting it as an account of the nature of law. The remainder of the chapter examines the possibility of customary international law: given that custom can and does serve as a source of international law, positivists owe a plausible account of how customary rules are made or posited. A preliminary argument for the compatibility of the normative practice account of custom with the respective arguments of Hans Kelsen and Joseph Raz for legal positivism brings the chapter to a close.

Keywords: Customary international law, Choice of law, General principles of international law

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