Vanderbilt Journal of Transnational Law

First Page



In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem with unperfected legal material occurs when judges and arbitrators purport to rely upon it. It is vital that they appreciate that when they are performing the role of judge or arbitrator, there are constitutive implications to their actions that transcend the case they are deciding. Hence they must use a different set of legal tools. Scholars may cautiously reconstruct unperfected legal acts in international law. Judges and arbitrators, I submit, should not.