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.

Translating Legal Quirkiness – The Austrian Versteinerungstheorie

I recently watched Mark Weiner’s (Worlds of Law) video on the Austrian Versteinerungstheorie (Versteinerung meaning petrification). According to the Versteinerungstheorie, words in constitutional provisions must be given the meaning they had at the time the provision was made – they are set in stone, if you will. While watching the video, I immediately thought of the two potential issues the Versteinerungstheorie would pose to legal translation. 

First, the translation of the term itself. In fact, a literal translation of Versteinerungstheorie would not make much sense. And, while one could off-handedly translate Versteinerungstheorie with originalism, it might lead to misunderstanding because other than originalism it is an established rule rather than a method of interpretation. 

Second, the implication of theory on translating provisions of the Austrian constitution. As the Versteinerungstheorie stipulates, you have to dig in the past in order to grasp the meaning of a tem used. It is therefore not sufficient to be fluent in contemporary Austrian (German), because language has obviously evolved since the Austrian constitution came into force.

So the example of the Austrian Versteinerungstheorie just further illustrates how complex translation of foreign legal texts can be: In addition to being fluent in the languages presented, a legal translator has to know the legal background and culture as well as the linguistic evolution.

The United States Supreme Court and Foreign Law

With this post, we quickly set aside the issue of interdisciplinarity in comparative law and focus on applied comparative law in a broader sense. Specifically, I would like to look at the question whether the United States Supreme Court (and courts in general) should consider foreign law and practices.

In this regard, Justice Breyer of the United States Supreme Court just published his book The Court and the World: American Law and the New Global Realities. The book essentially is a commented synopsis of recent Supreme Court decisions that mention foreign law. Most of these decisions concerned the interpretation of international treaties or statutes where consideration of foreign law is fairly accepted. Sometimes, however, foreign law was consulted on questions relating to the United States constitution and its interpretation. In particular, issues relating to national security and antitrust triggered a look across borders, but also questions about gay rights and the death penalty.

According to Justice Breyer, foreign law – while by no means binding – could be quite “instructive” in cases involving questions of constitutional interpretation in general and more specifically questions relating to the Eighth Amendment and the death penalty.

“It [the Eighth Amendment] uses the word ‘unusual,’ and the founders didn’t say unusual in what context.”

Generally, judges – and lawyers – across borders could learn from each other. Unfortunately, drawing inspiration from abroad is still very limited – not just for ideological reasons, but also because of lack of understanding foreign law and its terminology.

Bibliography

  • Adam Liptak, Justice Breyer Sees Value in a Global View of Law, The New York Times, September 12, 2015 (available here)