18th International Congress of Comparative Law-topic of the opening plenary
Today, July 26th, the plenary addressed The Role of Comparative Law in Courts and International Tribunals.
I was unable to attend the entire session. My notes reflect the parts that I heard and some of the essays circulated by the panelists. The panel was chaired by Jurgen Basedow (apologies for all the coming posts that diacritical marks are difficult in this blog program) of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany. He was joined by Justice Sabino Cassese, Constitutional Court of Italy; Judge Diego Garcia Sayan Larrabure, President, Inter-American Court of Human Rights; Carolyn Lamm, White & Case, Washington, DC; Hon. Rosemary Barkett, Judge, US Court of Appeals for the Eleventh Circuit; and Judge Bruno Simma of the International Court of Justice.
When I arrived, the discussion concerned some issues centered upon the general principles of law of article 38 of the Statute of the International Court of Justice. It was observed that the Inter-American Court had become more authoritative in human rights after many of the immunity-granting statutes and policies of some of the jurisdictions who are members had been rejected over time. So, regarding the general principles, have these "dethroned" the the national will of states? Attempts at the ICJ and elsewhere have been made to explore the answers to some legal questions with resort to statutes of the jurisdictions, and this is sound but the actual provisions must be understood and carefully examined as to their applicability.
The real question, and in the course of this discussion the names of Justices Kennedy and Scalia of the U.S. Supreme Court did come up in the context of their different respective views, is this: how to take account of foreign law? Different panelists discussed not only the obvious fact of one jurisdiction not actually being able to apply foreign law (except in the context of what law applied under a given jurisdiction's conflict of laws and choice of law rules), but for really new areas of law, the experience of another legal system may provide clues as to how a new legal rule might play out if enacted. In other instances the concepts are evolving and so the guidance is toward understanding that evolution and not so much because the area of law is new (example: U.S.evolving understanding of the standard for "cruel and unusual punishment" in the 8th amendment to the U.S. constitution).
Finally, what for me was one of the most interesting observations came in the area of comparative constitutional law: are constitutional courts becoming part of a common epistemic community? Members of/parties to the same international convention do in fact become part of a community of interpretation of that instrument's terms. The same may true of similar constitutional provisions, bills of rights, etc.
This plenary this launched what promises to be a most interesting gathering of judges and national reporters from the various legal systems.
I was unable to attend the entire session. My notes reflect the parts that I heard and some of the essays circulated by the panelists. The panel was chaired by Jurgen Basedow (apologies for all the coming posts that diacritical marks are difficult in this blog program) of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany. He was joined by Justice Sabino Cassese, Constitutional Court of Italy; Judge Diego Garcia Sayan Larrabure, President, Inter-American Court of Human Rights; Carolyn Lamm, White & Case, Washington, DC; Hon. Rosemary Barkett, Judge, US Court of Appeals for the Eleventh Circuit; and Judge Bruno Simma of the International Court of Justice.
When I arrived, the discussion concerned some issues centered upon the general principles of law of article 38 of the Statute of the International Court of Justice. It was observed that the Inter-American Court had become more authoritative in human rights after many of the immunity-granting statutes and policies of some of the jurisdictions who are members had been rejected over time. So, regarding the general principles, have these "dethroned" the the national will of states? Attempts at the ICJ and elsewhere have been made to explore the answers to some legal questions with resort to statutes of the jurisdictions, and this is sound but the actual provisions must be understood and carefully examined as to their applicability.
The real question, and in the course of this discussion the names of Justices Kennedy and Scalia of the U.S. Supreme Court did come up in the context of their different respective views, is this: how to take account of foreign law? Different panelists discussed not only the obvious fact of one jurisdiction not actually being able to apply foreign law (except in the context of what law applied under a given jurisdiction's conflict of laws and choice of law rules), but for really new areas of law, the experience of another legal system may provide clues as to how a new legal rule might play out if enacted. In other instances the concepts are evolving and so the guidance is toward understanding that evolution and not so much because the area of law is new (example: U.S.evolving understanding of the standard for "cruel and unusual punishment" in the 8th amendment to the U.S. constitution).
Finally, what for me was one of the most interesting observations came in the area of comparative constitutional law: are constitutional courts becoming part of a common epistemic community? Members of/parties to the same international convention do in fact become part of a community of interpretation of that instrument's terms. The same may true of similar constitutional provisions, bills of rights, etc.
This plenary this launched what promises to be a most interesting gathering of judges and national reporters from the various legal systems.
posted by Marylin Johnson Raisch at 1:47 PM
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