A non-normative, game-theoretic account of conventionality as a foundation for international law

Legal theorists have long grappled with providing a justificatory philosophical ground for\ud the normative character of international law. The answer, as exemplified by jus cogens\ud and customary international legal norms, seems to have been monolithic or pervasive\ud global acceptance. But, many argue, this is a merely Active justificatory philosophical\ud ground, as evidenced by overwhelming counter-trends in the international community. A\ud justificatory philosophical ground for the normative character of international law\ud requires a richer notion of normativity, as well as conventionality, allowing for degrees of\ud conventionality and greater and lesser normative character. This will allow us to capture\ud a much broader range of conventional state practice, including state practice that we\ud generally intuit as malfeasance, and the way in which we generally intuit that social\ud conventions evolve and devolve over time