This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or in some cases, non-existent. More fundamentally, it essentially converts law professors into philosophe kings, imposing their ideas of what the law should be under the guise of describing the laws content The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. Cil differs from domestic law in a number of important respects First, in the Cil system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law, while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which3 This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or, in some cases, non-existent. More fundamentally, it essentially converts law professors into philosopher kings, imposing their ideas of what the law should be under the guise of describing the law’s content. The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law. I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. CIL differs from domestic law in a number of important respects. First, in the CIL system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law; while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which