International Law's Mixed Heritage: A Common/civil Law Jurisdiction

By Picker, Colin B. | Vanderbilt Journal of Transnational Law, October 2008 | Go to article overview

International Law's Mixed Heritage: A Common/civil Law Jurisdiction


Picker, Colin B., Vanderbilt Journal of Transnational Law


ABSTRACT

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

I. INTRODUCTION

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. …

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