In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another”.
Insofar as comparative law is considered merely as an opportunity to “learn” from municipal legal systems, then the matter is relatively uncontroversial. A perhaps more controversial question, however, is: how are the lessons learnt from comparative law to be used?
While some authors, on the one hand, have suggested that the lessons from comparative law may provide safeguards against judges who attempt to legitimate a posteriori a solution that they have already chosen (see Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, Journal of International Criminal Justice (2003)).
On the other hand, some commentators have suggested that comparative law may be used for precisely the converse reason. Judge Cassese, for instance, intimated that:
Mon experience est que souvent le droit compare est utilise pour confirmer une solution que l’on avait déjà trouvée.(cited in Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, in the Global Community Yearbook of International Law and Jurisprudence (2002)).
It is perhaps this apprehension which explains Judge Cassese’s categorical stance in Erdemović, in relation to the acceptance by the Tribunal of a guilty plea. While the Tribunal concluded that it could restrict its search solely to common law adversarial systems from which the rule was derived, Judge Cassese insisted that such a narrow inquiry was unacceptable. Read the rest of this entry…