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45 Geo. J. Int'l L. 445 (2013-2014)
The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches

handle is hein.journals/geojintl45 and id is 463 raw text is: THE INDUCTIVE AND DEDUCTIVE METHODS IN CUSTOMARY INTERNATIONAL LAW ANALYSIS: TRADITIONAL AND MODERN APPROACHES WILLIAM THOMAS WORSTER* ABSTRACT Contemporary customary international law analysis is currently understood to be a struggle between traditional and modern approaches, implicating sig- nificant normative outcomes. These opposing approaches are supposed to reflect the use of the inductive and deductive methods respectively, with the former excusing the freedom of action of the state and the latter limiting the freedom of the state. This image of two schools, possibly in struggle, however, does not fully capture the ways in which the inductive and deductive methods are actually intertwined in customary international law analysis. The methods are not two opposing monolithic techniques. Instead, in practice, the methods are inter- mixed, combining a variety of choices. This Article will suggest the complex ways inductive and deductive analyses are layered in the assessment of customary international law and refute the notion that the inductive and deductive approaches can be so easily separated. Customary international law is based on a deductive foundation that that the binding nature of the law can be based on consent, that custom is a source of law, and that custom is established by state practice and opiniojuris. In determining which rules are binding under customary international law, we use either induction or deduction to construct hypotheses about the law, and determine that those hypotheses can be tested through a sampling study, amassing evidence. The conclusion that we can test for the law through an inductive process, is itself a deduction, and a deduction that avoids the question of whether the issue to be tested is truly a question of law or one offact. After all, questions offact are more easily understood as inductively verifiable. Once we determine that we can test for the law, we must construct most frequently through deduction, the types, forms and qualities of evidence, and the nature of the actors, that will be admissible for this examination. We reach conclusions on the form of the data pool and how it * Lecturer, International Law, The Hague University of Applied Sciences, The Hague, The Netherlands; LL.M. (Adv.) in Public International Law, cum laude, Leiden University, Faculty of Law, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of Technol- ogy, Chicago, Illinois; B.A., Modern European History, University of Kansas, Lawrence, Kansas. The author would like to express his appreciation to his research assistant, Veronika Georgieva, for her unfailing efforts to find many of the sources herein. All errors are the author's own. @ 2014, William Thomas Worster. 445

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