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Could Fiction Aid Comparative Law?

Comparative law is not as “pure” as it used to be. Modern comparative law often draws from other disciplines, such as history, economics, or linguistics. This interdisciplinarity can certainly result in beneficial symbiosis, as I have previously pointed out. Yet, how far can interdisciplinarity go?

In his recent article, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, Jaakko Husa introduces a new interdisciplinary area of research: comparative law and literature which he defines as

a cross-cultural field that draws comparisons between and among literature from different legal traditions, aiming to understand variations of law as they are influenced by the cultural context.

Husa coins the term imaginary legal transplant. Legal transplants in comparative law are legal concepts that are copied from one jurisdiction to another. According to Husa, imaginary legal transplants are much more inclusive and fortuitous than real world transplants. Still, imaginary legal transplants may foster our cultural understanding of legal thoughts. In other words, the way authors depict law in their fiction helps us comparative lawyers deliberate on the cultural underpinnings of our global legal traditions.

Bibliography

Jaakko Husa, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, 28 Maastricht Journal of European and Comparative Law 371-389 (2021).

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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.