30 March 2010

International-Comparative Law Duality

International-Comparative Law Duality

As an initial matter I want to thank Sean for inviting me to be a guest blogger. Like Dan’s blog, I too will initially discuss the issue of the relationship between Comparative and International Law. I think it is an important issue given the increase in International and Comparative Law programs, courses, emphasis areas and so on within legal education and academia.

I agree with Dan that, in general, the attention goes to the international side of the pairing. No doubt due this is largely due to the fact that there are simply so many more academics involved in the various branches of international law (including in my other field – international economic law) than in comparative law. For example, compare the size of the recent annual meeting of the American Society of International Law with the size of the annual meetings of the American Society of Comparative Law – thousands versus perhaps a hundred in attendance.

I also agree with Dan that international and comparative law are distinct fields. But then, I also disagree with him at the same time. I would argue that international and comparative law are at the same time both distinct and related fields, and that the hierarchical relationship flips depending on how one uses or observes the two together.

An appropriate metaphor could be the Light Wave-Particle Duality (see http://en.wikipedia.org/wiki/Wave_particle_duality). In that critical concept, light can be a considered to be a particle sometimes and yet a wave at other times. So too, each of these legal fields can be distinct from the other and yet still related and connected, with at one time one being superior to the other, and at other times the other superior. As with light wavicles, it all depends on how these legal fields are being used or observed.

Yet, when the relationship has traditionally been considered, the typical observation is that comparative law serves international law – through its role in understanding international law implementation in dualist systems or its use in identifying international law sources via the “general principles common to the nations”. And so on. The “flip side”, that comparative law is the larger field, within which international law operates, is rarely presented or argued. In other words, that international law serves comparative law as comparative law seeks to understand legal systems and traditions. It is this second case that I have focused on in recent years. My initial foray into this idea can be found in my articles: Beyond the Usual Suspects: Application of the Mixed Jurisdiction Jurisprudence to International Law and Beyond, 3 Journal of Comparative Law 160 (2008) and the longer International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 Vanderbilt J. Trans. L. 1093 (2008). Both can be found at http://ssrn.com/author=386588 I continue to work on the general idea, though now focused on specific subfields or institutions within international law.

Essentially I have argued, and continue to argue within more specific international law contexts, that international law can be viewed as just another legal system and as such is then amenable to the comparative analyses comparatists enjoy. In other words, that it is not sui generis – well, not so much more unique than is any legal system. Heresy perhaps!

Furthermore, I argue that such analyses, while difficult, are fruitful, for international law itself as well as for comparative law as a whole. For example, at the moment I am examining the WTO through a comparative lens. To the extent I can identify legal cultural characteristics within the institution and its jurisprudence, the WTO can then take those characteristics into account when resolving novel (to it) legal issues. For example, such as how to reconcile the effective use of precedent by the WTO’s Dispute Settlement Body (DSB) with the prohibition that the DSB can not add or detract from the rights and liabilities of the WTO members (see DSU Article 3(2) “. . . Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”)

In any event, this quick post (yes, I quickly knocked it out – it is a blog after all) is merely a small attempt to show that the all too accepted relationship of the two fields, that international law is on top with comparative law as its handmaiden, is not the only way to view the relationship. Rather, might it not be that comparative law, the consideration of legal systems, might be the overarching field within which one might find French law, Common Law, and even international law. But then, as with light, which is a particle or a wave depending on how you are using or observing it, so too the relationship of the two depends at the time on the observer and the activities involved. Accepting this duality allows us to make advances in both fields, just as the acceptance of wave-particle duality did the same in Physics.

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