It has happened to me numerous times: after explaining to a friend, neighbor or simple acquaintance that I am interested in comparative legal issues, I get the reaction “So you are doing international law!” Well, not quite. Hence, in this article, I would like to examine the relationship between comparative law and international law and why they are so often lumped together – not just in conversations, but also when it comes to law degree programs or law journals.
Theoretically, international law and comparative law are two very different things. Comparative law is a legal discipline with its own history, methodology, philosophy and approach. In contrast, international law is a body of law that you can even further divide into public international law – the law governing international institutions and agreements between states – and private international law – conflict of laws on an international level.
Practically, however, one (international law) depends on the other (comparative law). For private international law, this is kind of obvious. Private international law (which is mostly a term used in continental Europe) uses comparative law knowledge to determine how the applicable law would solve an international legal issue and if the outcome would be in accordance with the ordre public.
Maybe a little bit less evident, public international law also benefits from comparative law knowledge and methodology when it comes to either creating or interpreting international legal agreements. Thus, Professor Blakesley writes
[To] understand international law properly, to be able to negotiate, litigate, or even to communicate effectively in the arena of international law, it is necessary to understand that its origin and discipline, its philosophical context, and the mindset of many of its practitioners is “civilian” or a variation on that theme rather than common law in inspiration. To practice international law well, one should also be a comparativist.
Dan E. Stigal, referring to the decision of the Supreme Court in Medellin v. Texas (2008), even goes one step further and argues that international law usually needs to be implemented by individual states and such implementation relies upon domestic law mechanisms. Thus, knowledge of foreign law is important to determine the outcomes of cases involving international treaties (like the Vienna Convention of Consular Relations in the Medellin case).
In sum, international law greatly benefits from comparative law knowledge and methodologies. Still, I would like to also stress the importance of comparative law as a distinct legal discipline that helps to understand, appreciate and preserve the diversity and richness of the legal systems of the world.
- C. Blakesley, Introduction at 4, in: The International Legal System, 5th edition (Blakesley et al., 2001).
- W.E. Butler, International Law and Comparative Law 49-52, in: Encyclopedia of Public International Law, 10 (Bindschedler et al, ed., 1988).
- Dan E. Stigal, The Nexus Between Comparative Law and International Law, at ComparativeLawBlog (2010), last checked 8/10/2019.