International Law's Mixed Heritage: A Common/civil Law Jurisdiction
Picker, Colin B., Vanderbilt Journal of Transnational Law
This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article seeks to rectify this problem by showing substantial congruence between international law and those national legal systems that may share many characteristics. The Article argues that those states that fit best with international law are those that have been classified as mixed jurisdictions. The result of this showing will be to open international law to the lessons leaned over the centuries by such mixed jurisdictions as Scotland, Louisiana, Quebec, South Africa and Israel.
TABLE OF CONTENTS I. INTRODUCTION II. ATTACKING THE CONVENTIONAL WISDOM A. The Diminishing Uniqueness of International Law B. Legal Traditions and International Law 1. International Law Is Part of the Western Legal Tradition 2. Does International Law Belong to One of the Sub-Traditions Within the Western Legal Tradition? III. MIXED JURISDICTIONS AND INTERNATIONAL LAW A. The Mixed Jurisdiction B. International Law and the Overarching Characteristics of Mixed Jurisdictions 1. The Civil Law and Common Law Are the "Basic Building Blocks" of International Law 2. It Is Objectively Apparent That International Law Has a Dual Character a. International Law Is a Dual System i. Example 1: International Law Sources Exhibit Dual Characteristics ii. Example 2: Dual Common and Civil Law Styles of the International Law Judiciary b. The Dual System Is Objectively Apparent 3. Common Law Public Law, Civil Law Private Law C. Specific Characteristics of Mixed Jurisdictions 1. Similar Genesis of the Mix 2. Similar Judicial Character 3. Similar Linguistic Issues 4. Precedent and Legal Sources in Mixed Jurisdictions 5. The Common Law's Reception in Mixed Jurisdictions 6. Reception of Anglo-American Procedure 7. Mixed Jurisdictions' Common Law Commercial Law D. International Law Is Akin to a Mixed Jurisdiction IV. CONCLUSIONS: THE BENEFITS OF THIS COMPARATIVE EXAMINATION
International law is supposedly unlike other legal systems. By conventional wisdom, it is sui generis--unique. (1) Conventional wisdom, however, should always be challenged; for even if it turns out to be accurate, the confrontation will improve our understanding and knowledge, supporting or further refining the basis for that so-called wisdom. An investigation into the uniqueness of international law and the findings from that investigation fall into the field of comparative law, which considers the characteristics of legal systems as a whole. (2)
Comparative scholars often analyze specific issues within international law but have performed little to no comparative analysis of international law as a whole. (3) This is not to belittle these previous and very important contributions to international law, but rather to suggest that the subject has been approached piecemeal and not as a whole. …