Download this Paper Open PDF in Browser

General Principles and Comparative Law

European Journal of International Law, Vol. 22, No. 4, 2011

23 Pages Posted: 10 Jan 2013 Last revised: 17 May 2016

Jaye Ellis

McGill University - Faculty of Law

Date Written: 2011

Abstract

This article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Furthermore, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.

Keywords: public international law, general principles, comparative law, sources doctrine

Suggested Citation

Ellis, Jaye, General Principles and Comparative Law (2011). European Journal of International Law, Vol. 22, No. 4, 2011. Available at SSRN: https://ssrn.com/abstract=2196949

Jaye Ellis (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514 398 6625 (Phone)
514 398 3233 (Fax)

Paper statistics

Downloads
59
Rank
308,470
Abstract Views
286