The purpose of the ISCL is to encourage the comparative study of law and legal systems and to seek affiliation with individuals and organisations with complimentary aims. We were established in June 2008 and are recognised by the International Academy of Comparative Law.
Thursday, January 10, 2013
General Principles and Comparative Law
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.
Ellis, Jaye, General Principles and Comparative Law (2011). European Journal of International Law, Vol. 22, No. 4, 2011.