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Custom, Codification, And The Verdict Of History, Jean Galbraith

University of Pennsylvania Law Review Online

In a terrific new article, Professor Timothy Meyer challenges this exalted view of codification, which numerous scholars since Oppenheim have echoed. Meyer argues in Codifying Custom that codification is a self‐interested project undertaken by rational and perhaps even cunning states seeking to write the rules in their own favor. He does not dismiss the possibility that codification projects clarify or progressively develop international law, but he views this possibility, which he terms the Clarification Thesis, as overstated. He argues that another common motive for codification is what he calls the Capture Thesis: “states often use codification to capture customary international …