European Journal of International Law, Vol. 22, No. 4, 2011
23 Pages Posted: 10 Jan 2013 Last revised: 17 May 2016
Date Written: 2011
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: 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