31 March 2010

Can the Calf Devour the Lion?

Can the Calf Devour the Lion?

In spite of the fact that he shamefully introduced science into an otherwise unblemished discussion of the law, I find Colin's idea of integrating international law into comparative law attractive on a number of levels. As one always excited by the chance to break free of the "tyranny of concepts," I find the notion rather engaging. As I noted to Colin in an earlier exchange, it is as though he proposes that the calf might consume the lion.

I also think that Colin is correct in that adopting such a view might open new portals for the analysis into international law and quite possibly assist in its development. But there are, of course, limits in terms of the degree to which international law can be a sound basis of comparison. Structurally, for instance, international law is unlike domestic law in that it is far less appreciable as a system of rules: it depends upon state consent to be binding, it lacks effective enforcement mechanisms, etc. As the Medellin case demonstrated all too well, the judgments of the International Court of Justice -- even when states consent to its jurisdiction -- have no practical effect within the borders of a state that does not care to implement them. Otherwise stated, the subjects of international law are not affected by its precepts in the same way that subjects of domestic law are affected.

But most importantly, the incorporation of international law into comparative law is hampered by the limitations inherent in international law which, as noted, principally aims to govern state behavior rather than to regulate the conduct of the citizenry. This makes the purpose of international law quite different from that of a domestic legal system and renders the functional competence of the international legal system decidedly more narrow in scope than that of a domestic legal system.

One cannot, therefore, compare the French law of property (the rules governing of non-use of land, the effects of adverse possession, etc.) with the international law of property because what little international law exists with regard to property ownership does not seek to regulate it in the same way. Domestic law seeks to govern how citizens own and use their property while international law in that regard (or what little exists) seeks to curb state abuses and limit displacement. While some linkages may certainly be made at the fringes, the core of property law is simply not something touched by international law. As such, the conceptual distance the two subjects is probably too great to render any comparison meaningful or fruitful.

Similarly, while there is certainly room for comparative discursus in relation to international criminal law (as embodied in the foundational documents of the various ad hoc tribunals and the International Criminal Court) and domestic criminal laws, even that comparison is constrained by the exceptional nature of international criminal law which - as a general proposition - seeks only to address those crimes which impact the international community (such genocide, grave breaches of the Geneva Convention, and aggression.) Accordingly, there is no real opportunity to compare international criminal law with, for instance, the Islamic law relating to forgery or the treatment of contumacy in Latin American penal codes.

All of this is not to say that international law cannot be the basis of useful comparison in some areas. As Colin points out in his exquisitely polymathic post, it quite obviously can be. For instance, international agreements do regulate sales and other activities related to commerce which overlap certain aspects of domestic law. Colin's work exploring the legal and cultural characteristics of the World Trade Organization through a comparative analysis is an example of how this area can be further pushed and the new furrows to be plowed. The possibilities are there and, I am sure, exist in quantities far greater than I perceive. (In fact, in a later post, I intend to dwell on a recent article which touches upon in absentia provisions of the Special Tribunal for Lebanon and which has some comparative implications.) But the fact remains that international law is fundamentally different than domestic law and the focus of the international legal system is both narrow and distinctive. Its essence will forever be something apart from the family of domestic laws. So while I am intrigued by the idea of the comparative calf consuming the lion, I think that international law is of a character sufficiently different to prevent easy consumption.


1 comment:

  1. Nice post. I especially like the parts that say "I agree with Colin"! But seriously, I think Dan raises many good points about the limitation of my proposed comparative analysis of international law. Indeed, for me it is those challenges and those obstacles that make it particularly fun. But, I am not convinced those challenges and obstacles are insurmountable. I think they are serious, but perhaps only different in terms of degree than the challenges any comparatist faces when engaged in comparative examination of foreign (to the comparatist) legal systems. Comparisons or analysis of fundamentally different legal systems are part of our job description. Even of those with fundamentally different bases - such as in religious legal systems, or political/economic ideological legal systems. The "mere" fact that the participants in the international legal system are states does not, in my opinion, remove them from comparative analysis (and I know that is not what Dan is suggesting). Nor does the failure of a state to follow an ICJ ruling mean the system is any the less different. After all, do we measure the validity of legal system by the percentage of folks that follow the speed limit? I think not, though certainly it can be a useful piece of data in our analysis. Anyway, more later, though I suspect Dan and I are probably more in agreement than disagreement over an attempt to apply our comparative tool chest to international law.