International Law, Comparative Law, and the U.S. Courts

The distinction between international law and comparative law is not just conceptual, but is also of practical importance. Thus, the Constitution determines the “law of nations” which – as Justice Ginsburg puts it – “is the core of what we today call international law” to be binding for U.S. courts while foreign law is not. [1]

This does, however, not necessarily mean that U.S. judges should be blind or ignorant to foreign laws and court decisions. In fact, there are many examples where U.S. Courts have drawn inspiration from a comparative perspective on an issue they had to decide. [2]

Yet, the question of whether a U.S. Court should look at foreign legal sources or should not has always been (and still is) highly controversial. Opponents basically are concerned (1) that consideration of foreign law might be arbitrary (i.e. only decisions/laws that are in accordance with the own mind set are cited) [3] and (2) that U.S. judges may not fully get the full picture behind a foreign decision or law due to a lack of (social, historical etc.) background knowledge. [4]

While the above concerns are definitely valid and should prevent judges from just blindly treating foreign law as binding, I do not see why – especially in today’s interconnected world – foreign legal sources should not get the same level of consideration as other secondary legal sources like law review articles or even legal blogs. [5] After all, other judges (or legislators) may have already found a good solution, so we do not always have to re-invent the wheel!


Sources

[1] Ruth Bader Ginsburg, My Own Words, 2016.

[2] Calabresi&Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005).

[3] see [1] on page 254 referring to Justice Scalia.

[4] see [1] on page 254 referring to Judge Richard Posner.

[5] see [1] on page 255.

[6] for an older post on the Supreme Court and Foreign Law, see here.

Comparative Law vs. International Law

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.

Bibliography

  • 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.

Functionalism in Comparative Law and Legal Linguistics

With this post, I intend to close the loop by bringing together comparative law and legal linguistics. More specifically, I am going to point out a common denominator of both disciplines: functionalism. Interestingly, functionalism plays an integral part in the development of both areas, though in a somewhat contrary way.

The introduction of functionalism to comparative law has been attributed to Ernst Rabel. Its establishment, however, as a core comparative law methodology is due to the detailed treatment of functionalism by Konrad Zweigert and Hein Kötz in one of the most popular comparative law textbooks Introduction to Comparative Law. According to them, the term functionalism stems from the premise to focus on the functions of the law as the tertium comparationis when comparing two or more legal systems. The question is where to look for the functions of the law: only the written law or law as it is practiced, including social norm or culture. It is safe to say that strict focus on the written law alone is no longer acceptable in comparative law. The extent, however, to which a comparatist should consider other non-traditional sources of law is still subject to great discussion.

Legal translation has traditionally been extremely technical with an exclusive focus on semantics. Any divergence from the text strictu sensu was unacceptable. Only recently, legal translators started to look beyond the text as written. As a result, functions and social purpose of legal norms are becoming more and more relevant in legal linguistics. This kind of functionalism in legal translation is still far from uncontested as it opens the field for interpretation and subjectivity.

This very brief synopsis of the methodological development of comparative law and legal linguistics illustrates the key part functionalism played – and still plays – in both of these fields. Interestingly, the significance of functionalism in these areas seems to be orthogonal. Thus, modern comparative law criticizes functionalism as being too strict and not giving enough consideration to cultural diversity in law. For legal translation, however, functionalism represents a step towards more flexibility that allows a translator to also include cultural aspects into his work.

Bibliography

  • Giuliana Garzone, Legal Translation and Functionalist Approaches: a Contradiction in Terms? in Legal Translation: History, Theory/ies and Practice. Proceedings of the International Colloquium, Univ. of Geneva, 395-414 (2000).
  • Jaakko Husa, Comparative Law, Legal Linguistics and Methodology of Legal Doctrine, in: Methodologies of Legal Research, Hoecke and Ost (eds.) 209-228 (2011).
  • Konrad Zweigert and Hein Kotz, An Introduction to Comparative Law 33-47 (1998).