Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the identification of general principles of international law that is quite different from the one I described as being the current dominant approach, and rather similar to the approach that I propose in my paper. Central to my argument is 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. The approach taken by Judge Shahabuddeen in Furundzija, and adopted by Aldo, seems compatible with the one I advance. I would propose the adoption of a more modest goal: rather than hoping to find ‘a common underlying sense of what is just in the circumstances’ as Judge Shahabuddeen would have it, I would suggest the identification of a reasonable, and reasonably just, solution to a legal problem. Nevertheless, Judge Shahabuddeen’s approach moves sharply away from a mechanical, or functional, approach to borrowing from municipal legal systems. I am less confident than Aldo regarding the extent to which this principle is reflected in what most international judges do, and what legal scholars say they ought to do, when it comes to general principles, though judges on international criminal tribunals are moving in interesting and promising directions.

I am not convinced that Aldo’s approach to comparative law provides appropriate guidance to international judges looking to learn from municipal law. Schmitthoff’s approach to comparative law, adopted by Aldo, is problematic in my view. I agree with Schmitthoff that comparative law is better described as a comparison among reactions of legal systems to a problem than as a comparison between legal rules and institutions, but I find that the second stage, the utilization of the results obtained, is question-begging. It seems to me that we must understand what we are about when comparing two things: the range of purposes to which we will put any lessons learned must surely affect what we look at and for. Furthermore, I fail to understand why the legal systems which are to be compared have to first be seen to be comparable. Surely the utility of a comparison will depend on what one learns from the comparison and not from a prior conclusion that two things are fit to be compared. This strikes me as all the more true if we are comparing responses to problems and not legal rules or institutions. Furthermore, it is imperative that public international law be able to absorb lessons from a vast array of legal traditions.

It is not immediately clear to me what purpose is served by Aldo’s comparison between comparative law and customary international law, unless, of course, comparative law is seen mainly as a technique to identify legal rules that are ripe for transplantation to another legal system. But I do not understand comparative law in this way; nor do I understand this as being an important lesson that comparatists have to teach to international jurists struggling with general principles. In my paper I focus, rather, on the best ways that judges can learn from other legal systems: HP Glenn’s approach tocomparative law methodology as focusing on the sharing of information between legal traditions strikes me as particularly relevant in this context. It is quite true, as Aldo notes, that my proposed approach would aggravate rather than solve the issue of judge-made law, which, in a society such as international society, poses particular challenges. I nevertheless think it preferable for judges to say that they are trying, with reference to municipal legal systems, to solve legal problems in a way that will make a positive contribution to international law more generally, rather than to claim that general principles derive their validity from state consent or from the objective nature of law.

Finally, my purpose in taking issue with Cassese’s position in Erdemović was not to condone the consultation of a narrow range of domestic legal systems or types of systems, but rather to condone the decision made by other judges to examine rather than ignore information on guilty pleas that had been amassed in a range of places over a long period of time.