Comparative International Law

Abstract

This Article examines the emerging field of study called "comparative international law," first generally and then by specific examination into historical comparative international law traditions. We map out historical precedents of comparative international law to find and to create patterns, which is important to render future CIL projects coherent and relevant to policymakers. Historical analysis also unlocks what is both common and distinctive to the fields of comparative and international law, respectively. This, in turn, allows us to conceptualize their interaction and to warn of several likely or unintended dimensions (pitfalls) for the emerging field of CIL: (1) "amateurism" and "legal corporeology" (Riles) involving unsophisticated sampling of traditional comparative law forms and crude comparisons of national traditions and actors; (2) failure to understand micro-mechanics of legal transplants and norm diffusion (Sacco), which in turn leads to (3) failure to appreciate micro-level local legal customs, values and interests; (4) likely failure to examine the institutional dimensions in the "home" country/institution/organization, which is often the ‘control variable’ against which foreign legal systems are assessed.

This Article is divided into three parts. Section one unpacks the general trajectory of the field of comparative international law, proposing the Interwar period (1919-1939) as a critical framework for understanding the first generation of CIL, and the post-WWII Bretton Woods (and subsequent "crisis" periods) as important moments of political contestation within the respective disciplines. Section two asks whether these critical moments may imbue both internationalists and comparativists with shared theoretical assumptions or outlooks: the notion that they are involved in progressive scholarly endeavors; pervasive blindness to the distributive outcomes of their normative policy recommendations; recurring failure to take stock of failure; inability to engage creatively with the objects of their study. Section three, thus, explores the dynamic political dimensions of likely CIL projects, including potential conflicts. These conflicts may form the basis for a creative political space within the legal academy. Or, and more likely, they will continue to fractionalize the respective disciplines, significantly diffusing the emancipatory potential of both.

Keywords: comparative law, international law, comparative international law, international legal theory, fragmentation, legal history, comparative legal history, international legal history