International Law as a Wedge Between Legal Systems
THE COMMON LAW AND THE CIVIL LAW TODAY ‒ CONVERGENCE AND DIVERGENCE 1 (Vernon Press: Wilmington, Del., Marko Novakovic, editor 2019)
11 Pages Posted: 21 Jan 2020
Date Written: January 17, 2020
The big question that this volume addresses is whether international law can bridge gaps between the world’s principal legal systems. There are many pathways that such bridging might take, and others explore them in this book. What I want to do is discuss the ways that international law might serve as an obstacle to convergence between the common law and civil law.
This essay draws on a larger scholarly enterprise in which I have played a part, namely the exploration of the concept of comparative international law. International law aspires to universality and uniformity. It applies independently of municipal (domestic) law. Yet in practice states and regions have distinct, and sometimes radically different, approaches to both the process of making international law and the products of that process. Claims about what international law requires and how one can tell vary a lot, depending on who makes the claim.
This paper first will outline the general features of comparative international law. It then will discuss the particular features of the international human rights system that can exacerbate the gaps between common-law and civilian jurists. It demonstrates how these features play out through an example, an important human rights dispute that implicates the differences between the common law and civil law. It concludes by showing how these differences bring about discord and block international cooperation to the detriment of the international law project.
Suggested Citation: Suggested Citation