Emory Law Journal

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Laurie R. Blank Director, International Humanitarian Law Clinic, Emory University School of Law.

Two of David Bederman’s recent works focus on the role and development of custom in international law—The Pirate Code 1David J. Bederman, The Pirate Code, 22 Emory Int’l L. Rev. 707 (2008). and Custom as a Source of Law. 2 David J. Bederman, Custom as a Source of Law (2010). Both of these works showcase David’s long celebrated and admired ability to weave together multiple legal concepts, components, and regimes to find cross-cutting ideas, values, and principles. His intellectual agility and breadth of interest and expertise surely made David one of the top modern international law scholars; it also made him a sought-after attorney and consultant in “the real world” outside of academia.

In many ways, though, David was foremost a teacher, and he taught and trained hundreds, indeed thousands, of law students over his career at Emory and other law schools. David’s grasp and study of the myriad ways in which custom can develop and affect legal regimes offered his students a unique understanding of international law and how it works. In many areas of international law, both private and public, customary law is a vital source of law. All students in an international law class learn how customary law is formed through state practice and opinio juris, a critical complement to lawmaking through treaties. Understanding the broader role that custom can play, especially in the more diverse world of international law, offers a window into a great range of local and nonstate processes that impact the development of international law. Here, David married the roles of law scholar and law teacher in the best of ways.

Students studying most aspects of public international law these days encounter a world in which state-centered lawmaking and action—once the hallmark of the international legal order—is but one (albeit a dominating) facet of the international legal system. Today, nonstate actors are not only major players in both the private and public international law spheres but also contributing in a myriad of ways to the development of custom from the ground up, as opposed to the more traditional top-down formation of customary law. The richness of David’s analysis thus has opened up new avenues for students and others exploring the development and implementation of international law. In The Pirate Code, for example, David tackles a contemporary hot topic—piracy—but from a novel and pedagogically rich angle. Policy makers and academics alike are exploring the myriad of legal issues involved in the pursuit, capture, and prosecution of pirates by countries from the United States to the Seychelles. These issues stem from international, domestic, and customary law. However, David’s exploration of historical pirate codes of conduct and regulation offers an entirely new insight into the discourse on piracy and, in a broader way, highlights the role of custom in international law from a different angle entirely. This is simply one example of the way in which David’s legacy will continue to enrich the learning experience for students in years to come and make us all better lawyers, scholars, and practitioners.

Footnotes

Director, International Humanitarian Law Clinic, Emory University School of Law.

1David J. Bederman, The Pirate Code, 22 Emory Int’l L. Rev. 707 (2008).

2 David J. Bederman, Custom as a Source of Law (2010).