By Eric Vandenbroeck and co-workers

First it is important to consider what form of interpretation state decision-makers use to consider their options for action under international law because this will ultimately determine the foundation from which decision-makers will take action. Whether states adopt a traditional interpretation or a more liberal interpretation of an international legal principle ultimately affects the course of actions states may be willing to take.

As discussed in P.1, while there has been an increase in international relations scholarship looking at role of international law in state behavior, there has been little work done on the place of domestic law and its influence on the state policy process and subsequent behavior in the international system. We suggest that there are a number of reasons that this omission should be remedied. First, law is simply fundamental to society. No state would be an independent entity without it. Second, decision-makers within a state are products of their societies, and those societies include law. Therefore it makes sense to think that decision-makers will take their own socially constructed understandings of law with them when they interact at the international system level. Finally, law and politics go hand in hand. We would argue that you cannot separate them, and in many cases discussion of the best law even precede discussions of the best society. Therefore, it would seem appropriate in a field of political science such as international relations to include a study of law.

 

(A) Law as a cornerstone of society

From Plato’s Stranger and his search for the best legal system and Aristotle’s use of law and form of government as a means by which to guide citizens to achieve the ultimate good, to early Christian society’s attempts to create a civilization based on legalized notions of brotherly love, to the individualist conceptions of law developed by those thinkers of the Enlightenment such as John Locke and Montesquieu, political thinkers and philosophers have sought to find the appropriate role and balance for law within society. According to leading legal philosopher H.L.A. Hart: Few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question ‘What is law?’ Even if we confine our attention to the legal theory of the last 150 years and neglect classical and medieval speculation about the ‘nature’ of law, we shall find a situation not paralleled in any other subject systematically studied as a separate academic discipline. No vast literature is dedicated to answering the questions ‘What is chemistry?’ or ‘What is medicine?’, as it is to the question ‘What is law?’1

Law is a cornerstone of society, and every civilization, culture, nation, and state in the world has some form of law or law-like rules.2 Developing as society develops, law not only creates the rules that govern everyday action, but provides the shared understandings by which people are able to live together in a society without reversion to Hobbes’ war of all against all.3 There can be “no society without a system of law to regulate the relations of its members with one another.”4 Legal rules and institutions have always been a core foundation in any organized society.5 Some of the best evidence remaining of many of the earliest societies concerns their systems of law.6

The legal tradition of a state which develops throughout the history of a society becomes a mirror of that society.7 Law reflects the values of society, the culture, the economics and the politics.8 Law reflects the wishes of the decision-makers and the desires of the population, depending on society’s structure. Legal rules are rooted in social norms and values, and the legal tradition frames the notions of what that society believes is just. What people think about the law and the values embedded therein has much to do with how they behave, as well as significant consequences for the larger political and legal systems. In general, attitudes towards the rule of law likely influence a people’s willingness to comply with the law.

Moreover, as law is there from the beginning, law becomes a given, a factor that all members of a society come to rely on as a fundamental part of who they are. All their decisions are taken within the context of their culturally and historically unique legal tradition.9 To illustrate this foundational component of law, American legal scholar Lawrence Friedman describes law as a bridge. Friedman describes a community living on one side of a great river. The people begin to demand that their leaders build a bridge to the other side of the river. Once this is done, life changes for the community. Now people can live on one side of the river and commute to the other. Now people can visit cities and towns on the other side of the river. Now people can engage in commerce with those on the other side of the river. The entire framework within which the community makes decisions about every aspect of life is now changed so that all decisions are taken with the understanding of the existence of the bridge. Law, according to Freidman, is like the bridge. It is initially a product of social demand. In order to live together in peace and harmony, to avoid the life that is solitary, poor, nasty, brutish, and short, people come together, establishing a government and calling for law. Once in place, law starts to exert an influence on behavior and attitudes, apart for the institution that created it. Law becomes part of the people in the community, and their lives are ordered in reference to it. The law becomes part of every thought process in which the people engage, whether deciding how to respond to a wrong committed by a neighbor, or deciding how to interpret a provision of an international treaty. Law is, in other words, one of society’s
bridges.10

 

(B) From domestic to international law

Given that the domestic law of a state maintains such a basic position within the state and the state is the principal actor in the international system, it is a logical next step to suggest that the domestic law of a state plays an important role in shaping the behaviour of the state at the international system level. Not perhaps directly as a causal factor, but as the constituting factor shaping how the decision-makers of the state perceive their choices for action. Decision-makers, as members of the society from which they come, view law the same way all others in the society do – as a bridge. A bridge under whose shadow all decisions are taken, and within whose frame of reference all choices are made.

The domestic legal tradition then, in this context, becomes very important for understanding state behavior at the international system level. Yet, as described in P.1, it is something that international relations scholarship has largely failed to address.

This omission is interesting in light of the increasing interest international relations scholars, particularly those in the constructivist vein, have exhibited in examining international law in conjunction with the international relations of states. The importance of the rule of law applies to any society, whether the peoples of a particular tribe, city, state, or the world. As the rule of law governs the behavior of individuals within a state, so does it govern the behavior of states in international society.

International law has developed over thousands of years; reflecting the changing values of states within the international community. While this is not a paper on the creation of or compliance with international law, it is important to understand that international law, like domestic law, is a not only a product of those who create it, but is also used by those who are a product of their own legal traditions.

Therefore, while states may agree on the creation of an international legal norm protecting human rights or preserving the environment because the values of the international community have come to recognize these as important tasks, the ultimate interpretation of the specific provisions of the corresponding international law may differ based on the values incorporated within the domestic legal tradition. For example, a society such as that of Australia with a legal tradition based on cultural values of individualism, freedom of action, and minimal interference from outside parties will make a very different interpretation of international law concerning the best course of action to protect the global environment than a country such as Germany, where the legal tradition has incorporated a belief in the benefit of communal action for the protection of society as a whole, and where the relinquishment of some sovereignty to achieve this goal is accepted.11 In other words, states may differ on “how much freedom they are prepared to sacrifice for some common enterprise or to some supranational institution.”12

They may also differ as to how much confidence they have in law “as a means to achieve peace, security, order, justice, welfare.”13 Given this enormous potential for difference, it is important that we understand the legal tradition of other states. Doing so will allow us to create more common ground,14 recognizing the values that shape decision-makers policy positions.

 

I The interplay of law and politics

Given its importance as a foundational component of both domestic and international society, why is it that domestic law has not much been studied as a component – whether constitutive or causal – of international relations? Much of this, we would suggest, has to do with the debate over the past half century on the relationship between law and politics. Up until the 19^th century, scholars of politics frequently engaged in a discussion of law and politics simultaneously. In fact, it was very common in many states, historically, for scholars to serve multiple roles as political theorists, legal scholars, and government officials or diplomats.15 Beginning in the 20^th century, however, the fields of law and politics split apart and political scientists began to ignore law as a key component of the political world. This sentiment has been magnified significantly in the field of international relations. Unlike its counterpart, comparative politics, where studies on the rule of law in different states are a semi-common occurrence, the field of international relations has largely ignored domestic law.

 Much of this has to do with the preponderance of system-level analysis that dominated the field under the reign of neo-realism and the early institutional studies. But realism alone can’t be to blame for this omission. Later neo-liberal institutionalist studies which focused on other domestic-level attributes of states such as regime type, economic status, and political process for their role in state foreign policy decisions have also ignored the role of law.

In fact, at its inception, proponents of early realism did take stock of law as a potential factor in constituting state decision-making or causing state action. They also believed, however, that politics determines law, and therefore law has no independent influence on politics or political decisions about state behavior.16 Later work also determined that law was not an important factor when considering the power politics of the Cold War-era international system, and subsequent work has maintained this position.

We suggest, that this view of law is incorrect as it forces consideration of the law into a causal argument when in fact, the law, the legal process developed within each individual state, is rather a constitutive framework. Realists are right to suggest that politics shapes law. Law, however, also shapes politics. From the very beginning, political thinkers treated law and politics in the same vein, recognizing that each was critical for the creation of a stable and successful society. In turn, one cannot exist without the other, and thus when examining the decision-making process engaged in by states when it comes to interpreting international law, it is impossible to understand the position from which a decision is made without understanding how the legal tradition frames the possible choices.

The omission of law from discussion in the field of international relations, however, has begun to be remedied. There are a number of works in more recent years that have begun to discuss whether law and politics should be treated separately,17 or whether they are mutually constitutive.18 In this project I treat them as mutually constitutive. Allusion to the importance of studying the role that law within the state plays in state decision-making and action, however, has not gone completely unnoticed.

A number of recent works have recognized the potential role that domestic law plays in state behavior.19 How legal tradition might matter, and the specific influence of legal tradition on state policy towards international law, however, has not been examined.

 

What is a legal tradition?

Legal tradition, while a common term among comparative lawyers, has received Minimal consideration in the field of international relations.20 Legal tradition has been defined as “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.”21 In this project, I define legal tradition as historically-developed, culturally-conditioned attitudes about law. Primarily, I am interested in three specific attributes of a state’s legal tradition: the understanding of the purpose of law; the legal institutions within the state, particularly the body responsible for making law and the recognition of international law; and the primary source of law recognized as binding22.

While there are other components of legal tradition identified by comparative lawyers, these are the three most relevant for our understanding of state policy towards international law. Moreover, these three attributes of legal tradition encompass the entire spectrum of the legal process – from inception, to implementation, to compliance – and thus complete the spectrum of ideas members of a society will have about law.

A state’s legal tradition stems from many different factors, developed over the course of a state’s historical development. The method in which a society is founded, the religious and cultural influences on society, the historical relationship of the society to others, the history of politics and political institutions, as well as the development of educational systems and the scholarly community can all affect the type of legal tradition that develops within a state. Comparative law scholars have generally categorized legal traditions based on certain fundamental components shared between states such as ties to Roman law and the sources of law. These categories include the common law tradition, the civil law tradition, the socialist law tradition, customary legal traditions, and religious legal traditions.23 While these broad categorizations are useful for a general understanding of different traditions, they eliminate many of the subtle cultural differences which inform individual legal traditions and which contribute to the constitutive force of legal tradition. In this project then, rather than a simple division of state legal tradition into recognized generic categories, I will focus on the three key attributes of legal tradition I have identified above. This will provide a more nuanced understanding of the role of legal tradition in shaping policy by constituting understandings of appropriate behavior under the law as well as determining the level of influence interests may play in the policy process.

As a brief example of what comprises the legal tradition of a state, let me turn again to France and the United States. In both France and the U.S, revolution against an unpopular government and principles of the Enlightenment had a great influence on the two countries’ legal traditions. These foundational principles identify reason as the basis of authority, and include belief in the rule of law which respects the dignity and freedom of the people. From these principles, captured in the works of individuals such as Locke, Montesquieu, Rousseau, institutional arrangements have come into existence which further the underlying values concerning the law prevalent in the two systems.24 These institutional characteristics include representative government, a system of checks and balances, and the creation of a fair and impartial judiciary. While France and the United States share origins in these ideals, however, the differences in history surrounding the development of these values and the situations in which the countries have found themselves post-Revolution have created differing conceptions of law between the two countries.25 France, for example, with its longstanding ties to the Roman Corpus Juris Civilis and the antipathy felt towards the role of the judge in society stemming from judicial abuse of position prior to the revolution has developed a legal tradition focused on popular participation in a legal system based on written codes. The United States on the other hands, with its foundational principles of individual rights and freedoms and belief in the removal of extensive government oversight from the lives of its citizens, saw the development of a legal tradition founded on protection of the individual and the sovereign power of judges to not only make law through their decisions but to review the actions of the other branches of government.

These differences in historical development have created very different legal traditions within the two countries. It is these differences, I suggest, which account for the different ways in which the two states interpret international law.

 

Attributes of legal tradition which influence interpretation

As described above, in considering legal tradition as the constitutive factor determining the method of interpretation used by a state towards international law there are three specific attributes of each state’s legal tradition we will consider. Each of these is described in more detail in the following paragraphs.

 

(A)    The Purpose of the Law

Understanding the historical development of a state’s legal tradition allows us to understand the role of law within that particular society, and what purpose or aim is attributed to the law by the society. Depending on the society and the unique circumstance of its cultural origins and historical development, the purpose of the law may differ. For example, states where the legal tradition has developed out of a religious context will have a much different view of the role of law and the aims of law than a state in which law is developed by secular political representatives.

Indeed, one of the key components an examination of the historical development of a state’s legal tradition brings forward is whether law serves as the ordering principle of society (i.e. the guiding force used to determine the appropriate course of action), or whether this authority is left to a different ordering source, such as religion or ancient custom.

The purpose of law within a state can either be focused on the community or the individual. Some states view the purpose of law as providing overall guidance for the community, communicating to the people what they must and must not do, and providing an organized feeling of security and that the best interests of everyone are being protected. Other societies view law as a tool for the individual rather than a security blanket for the community. The United States, for example, has a very individualistic attitude anchoring the law. The law is based on the concept of protecting individual property and individual rights, rather than protecting society or group rights (for example, the Constitution of the United States, and thus subsequent law, was drafted with the foundational purpose of protecting private property and individual action). On the other hand, other states, such as France, the Scandinavian countries and those states with religious-or customs- based legal traditions, have developed legal traditions where the law is society-focused, rather than directed at the individual. For example, the French legal foundation stems from the French revolution which, unlike its American counterpart, focused first on the rights and duties of man, and not the protection of property.

The purpose of law is crucial for understanding how legal tradition implies the method of interpretation a state will use in interpreting international law for a number of reasons. International law by its very nature is a communal endeavor and strives to protect the interests of the community. While certain international treaties, specifically human rights treaties, may enumerate a number of individual rights to be protected, the fundamental aims behind international law is the preservation of peace and stability for the international community as a whole, and the protection of certain fundamental rights for all individuals and communities. This means that those states in which the purpose of law reflects communal protections will have a different interpretation of much of international law than those states where the purpose focuses on the individual.

Another reason the purpose of law is relevant for understanding state interpretation of international law is that the purpose of law often indicates the extent to which a state will accept outside interference with its domestic rules. States which maintain a communal purpose to the law are more likely to allow the imposition of government restrictions of individual actions domestically. Correspondingly, there states will be more likely to accept the imposition of international law of state action, again, translating the understanding of law domestically to the understanding of law internationally. For example, the German legal tradition is one which has a purpose of law which is community focused. This means that society view the primary goal of law as protecting the broader German society, rather than the individual. This does not mean that German citizens have no individual rights – the in fact have many – but what this does mean is that the state is more willing to restrict the rights and freedoms of an individual if, in the grand scheme of things, it will be better for German society as a whole. Correspondingly, Germany has been very willing to sign on to many international treaties which also protect the communal good, even if doing so infringes in some way on German sovereignty. This is because the protection of the communal good is a strongly ingrained tenet of the German legal tradition.

On the contrary, in a country like the United States, where the purpose of law is focused on individual rights and freedoms, the imposition of rules from an outside source such as international law is viewed as interfering with those rights expressly granted by the U.S. Constitution. This results in a much different approach to international law in the United States than in Germany.

 

(B) Legal Institutions

The second attribute of legal tradition which is important for understanding a state’s interpretation of international law is the legal institutions which are present in the state. There are two components to a state’s legal institutions which must be considered.

First, we must consider the method by which law is created and amended within the state. Second, we must examine whether the state maintains a monist or a dualist position towards international law. Depending on the legal tradition, these two institutional components may incorporate an understanding of who is endowed with the ability to enact law, who is endowed with the ability to review the law, the historical ties of the state to international law, and the ease with which international law becomes part of the domestic law.

In terms of the method by which law is created and amended, this influences the interpretation a state makes to international law because it will make it more or less likely that the state will feel compelled to accept the law as is until a particular process is completed to alter the law. In other words, states in which the democratically-elected legislature is responsible for making or amending the law will approach international law in a different manner than those states in which judges are primarily responsible for the law. When a legislature is responsible for making law, the process is usually communal, representative, and long. Legislatures debate substance and wording, and changes in the law are often slow in coming. It is a process of thought, then action. On the other hand, states in which the judiciary is responsible for making and amending law view the process of legal change as rapid, responding to new circumstances, and highly malleable.

This is a process of action, then thought. Whichever method a state adopts, therefore results in a very different perspective of international law. Those state where the legislature is responsible for making law will view any changes in international law as requiring a similar communal process. Those states in which the judiciary is responsible for making the law, will be more likely to push for changes in the law based on action and changed circumstances, not a communal discussion.

This can be seen in the case of France and the U.S. in the months leading up to the intervention in Iraq in 2003. The U.S. was proposing a new interpretation on the international rule of when a state can engage in anticipatory intervention in self-defense. The justification for this position largely stemmed from the changed circumstances present in the international community post-9/11. France, on the other hand, argues that the existing parameters of anticipatory intervention were still in place, and that any change in this meaning would have to come from multilateral efforts. The U.S. maintains a system in which the judges are primarily responsible for making law; the French a system in which the legislature maintains responsibility. This is reflected in their interpretations of international law.

Whether a state adopts a monist or dualist position towards international law offers a very straight-forward influence on the method of interpretation the state adopts.

A monist state is one in which, after ratification or acceptance of a principle of international law, that law automatically becomes part of the domestic law of the state. No further domestic action is required. A dualist state, on the other hand, is one in which addition domestic action is required. Often this takes the form of legislation which incorporates the international law into the domestic legal scheme. The problem with the dualist approach, however, is that is brings additional political entities into the legal process. And the more players you have, the more difficult is for the international law to become part of the domestic legal system and the less likely it is that the international law will be viewed as binding by policy-makers.

The classic example of a dualist state is the United States, where despite language in the Constitution that treaties are the supreme law of the land,26 practice has resulted in the Senate approving a treaty only if it is non-self-executing. This means that in order for the treaty to become part of U.S. law it must be enacted into law by Congress. Moreover, since the U.S. is a state in which the law is largely based on judicial decision, often times the legislation of Congress executing a treaty does not have any practical meaning until it is interpreted by the judiciary. This process thus results in international law rarely being internalized into the domestic law.

 

(B)    IWhat are the sources of the law?

The third attribute of legal tradition which is important to consider in order to understand how a state arrives at its method of interpretation of international law is the source(s) of law considered most authoritative. Whether or not international law becomes part of the legal toolbox that a state uses to make decisions about the appropriate course of action is determined in large part by the ease with which the international rules are incorporated into the domestic legal system.27 Depending on what a legal system considers a source of law, how international law fits into that categorization is a key determining factor. Moreover, once an international legal rule becomes a source of law, the method of interpretation for these rules can determine how influential the international rules ultimately are in guiding state behavior, as well as how free a state might feel to push the boundaries of international legal norms.

Every state has what it considers ‘sources of law’: those sources from which law is initiated, drafted, implemented, and interpreted. What is classified as a source of law varies from state to state. In a strict Islamic legal tradition, such as in Saudi Arabia, sources of law include the Qur’an, the Sunna, the Ijma, and the Qiyas. In the Indian legal tradition sources of law include the Veda, the Smritis, and the Sharmasastras of Hinduism, coupled with elements of British legal tradition such as parliamentary legislation. Other states, those that fall within the common law tradition, have as sources of law judicial decisions, legislation acts, and custom. Those states that fall within the civil law tradition have as their sources of law enacted law (i.e. legislation), custom, general principles of law, case law, and the writings of legal scholars.

Examining sources of law, those states that have written law as their dominant source of law and include the writings of legal scholars among their sources of law will interpret international law differently than those that do not. This is because, as it has been throughout history, international law emerges from the realm of the scholar and for the most part maintains itself in written form. States which focus on written law will more easily incorporate the written treaties that outline much of modern international law, and will thus have a more accepting attitude regarding the international norms.

These states are therefore more likely to view international legal principles as binding and this will be reflected in the policy positions they adopt. On the other hand, states which focus on other sources of law, such as judicial decisions, will not as readily view international law binding due to the fact that it stems from a source which is not recognized as the primary source within the state. As with purpose of law described above, this can also influence the level of infringement a state will allow by international law into its domestic legal tradition. States that do not view the multilateral, written form of most international law, as the primary binding source of law, will be less likely to view the imposition of the international law on their own law and policy choices as appropriate. Those states whose own domestic sources of law are similar to the sources of international law, will more readily accept the impositions international law might make on their domestic legal tradition because they recognize the source from which it stems as binding.

 

How does legal tradition shape policy towards international law?

The legal tradition of a state thus serves as a crucial influence on all behaviour subject to the rule of law, as different legal traditions will result in different perspectives on the appropriate course of action in different situations. Given its fundamental importance to organized society, legal tradition offers a potential wealth of explanatory power for understanding different state interpretations of international law. Given that the law often forms the third in the triumvirate of domestic institutions, and, more importantly, given that international law is, after all, law, and law is dealt with through legal institutions, an examination of the role of the law as a constitutive factor in a state’s decision-making process may provide us with a new understanding of what influences state policy concerning interpretation of international law. Legal tradition constructs the framework in which state decision-makers interpret international law.

Being members of the society from which they come, decision-makers will based their decision on the appropriate form of interpretation on their inherent beliefs about the role of law in society, the creation of law, and the sources of law: in other words the legal tradition of the state. A state’s legal tradition, therefore, constitutes the method of interpretation a state will use when considering principles of international law based on its primary attributes. Each of these attributes then either serves as a road map or clarifies the principles beliefs of the community which shapes the policy states make.

First, the legal tradition will include an understanding of the primary purpose of law that exists within the state. Whether the law is community-oriented or individualist, the way a decision-maker views the role of law will determine the position he or she takes on international law as well. If one doesn’t view domestic law as having the authority to interfere with the right to privacy, than it is likely that international law will not be viewed as have that authority either. Similarly, if you view the purpose of law domestically as providing overall guidance on how to live your life on a daily basis you may be more likely to accept an interpretation of international law that enhances this guidance.

Second, legal tradition will provide an understanding by which new law is created or existing law is amended. This will carry over into the interpretation of international law as well. For example, if a state’s legal tradition has developed such that it is only considered acceptable for the people’s direct representatives to enact or amend the law, then an interpretation of international law which allows amendment of international legal principles by a non-representative method will likely be considered unacceptable. At the same time, a legal tradition which understands that changes in the law come about through action that reflects changes in society – whether this action stems from the legislative body, the courts, the executive, or the public – may interpret international legal principles as allowing the same freedom.

Moreover, states in which the legal tradition has a historical tie to international law, and in which international legal principles have readily been incorporated into the domestic law will likely interpret existing international legal principles differently than a legal tradition which is resistant to the incorporation of international law. This is because the more easily international law becomes part of the laws and the legal tradition of state, the more likely state decision-makers are to view these rules as absolute guidelines in making their interpretations. On the other hand, for those legal traditions in which international law does not play a large role, decision-makers may feel less bound by the existing language of the legal principles, and thus be more willing to maintain a more liberal interpretation of international law.

Third, a state’s legal tradition will reveal what a state considers to be a valid form of law. In other words, the legal tradition of a state provides the hierarchy of laws that are considering binding to the members of that society, and which decision-makers will look to for an understanding of beliefs about a particular issue. This will, in turn, affect how these decision-makers interpret international law because if the international legal rule – whether written in a treaty or a principle of customary international law – is not in a form that is considered a great source of law within the state’s legal tradition, that state may be more willing to take a loose interpretation of the international principle.

These attributes of legal tradition are particularly influential when considering interpretation of international law, however, because of the role they play in making international law a part of the state’s legal tradition. I suggest the primary reason that legal tradition matters for the interpretation of international law as well as for domestic law, is that a state’s legal tradition determines how international law becomes part of the state’s legal consciousness. International law is created at the international system level, by diplomats and international lawyers, far removed from the daily lives of most people in society. Once enacted, international law may be binding on states, but its real power comes when international law is incorporated into the legal tradition within the state and thus becomes part of the legal fabric; the fabric that shapes every decision made. To once again use Friedman’s illustration of the bridge, international law is like a new bridge; a bridge built by agreement between two different communities on opposite sides of the river. The problem is, however, that to appease both communities, the bridge crosses the river in a location remote from both communities. Everyone understands that in theory the bridge is a good idea, that it is perhaps even necessary, and that if used it could be a really good thing for everyone, but it is so far removed from the daily lives of the people that the new bridge doesn’t really become part of their daily framework, and they don’t really consider it when making day-to-day decisions about how to travel or where to live.

Now let’s say that one of the communities lives under a rule of law in which it is the goal that the good of all members of society is considered the obligation of all and it becomes known that if people would start to use the new bridge then there would be less pollution and new jobs for the poor in the community. The people of that community thus began considering their actions in reference to the new bridge because of the socially-constructed belief in doing right by the whole community. The other community has no such component specifying the good of the community as part of its legal tradition (it is rather a lawless community in which everyone sees law as their personal tool for advancement). In this case, the new bridge would not even enter their frame of reference because there is no conception of law which causes the new bridge part of their decision-making process. Thus in the first community the new bridge becomes part of their decision-making framework; in the second community it doesn’t. It is in this same way that legal tradition can facilitate, or not, the incorporation of international law into domestic legal tradition.

Certain legal traditions easily allow the incorporation of international law into their domestic fabric. Those legal traditions which have close historical ties to international law, or whose domestic legal attributes closely mimic the attributes of international law itself are more likely to readily recognize the binding authority of international law. This makes existing international legal principles a greater constitutive factor in state interpretation for international law. This is because state decision-makers are more aware of the international legal principles at stake because they have become part of their domestic legal framework. It is therefore expected that states in which written law is the dominant source, or in which there is an acceptance of outside interference with domestic laws will more adopt a different interpretation than states in which international law has only a small place in the domestic legal tradition.

On the other hands, other legal traditions hinder the incorporation of international law into the domestic legal system. Legal traditions that focus on individual rights, which have their foundations in religious beliefs or tribal customs, or which have historically resented outside interference with domestic law are less likely to readily accept the binding authority of international law. Correspondingly, those states in which law is created through the actions of the judiciary rather than via the legislature will also have a different attitude towards international law because the understandings of the appropriate methods of law creation and the binding sources of law will be different. It would therefore be expected that these states would adopt non-traditional policies of interpretation towards international law. And, it is in these circumstances that traditional international relations literature might view the state as non-compliant.

In P.3 we will show how that both legal tradition and state interpretation of international law are important considerations in understanding state decision-making behavior. Largely overlooked in favor of more traditional domestic characteristics, such as military capability, regime type, or level of economic development, the legal tradition of states is key for understanding the approach a state takes to international law. Perhaps this should come as little surprise, as law is a foundational component of most societies and accordingly, there should be a relationship between the way law is understood within a state and the approach a state takes to law outside its own territory. Interpretation, as well, has much to offer in terms of adding to our understanding of state behavior in the international arena. The interpretation a state makes of an international norm is the first step towards the ultimate course of action a state will adopt. It is at this point when negotiation and compromise are more likely to be achieved, prior to a firm commitment by states on their course of action; a point after which the costs of altering course can be much higher. An understanding of how states arrive at their interpretations of international law can provide a clearer picture of the position a state will take on any given international issue, and understanding the point of view of others can lessen the degree of tension and result in compromise rather than conflict.

Furthermore, using a constructivist framework and constitutive analysis to examine how states arrive at their interpretations of international law provides a more nuanced explanation of the decision-making process than simply rationally calculated interests as reasons for action. There are many influences which contribute to the decisions states make, including history, culture, ideas, and interests. None of these alone can provide a complete explanation for the choices states make. Examining how the historical development of legal tradition has created certain perceptions of the purpose of law and the means available to achieve this purpose, as well as limits on the role to be played by state interests, offers a more complete picture of both how states arrive at their interpretations of international law, and why states arrive at different interpretations of the same principles of international law. Moreover, understanding that interests do indeed matter for the decisions that states make, including decisions about how to interpret international law, but at the same time recognizing that interests are constituted by the same legal tradition that shapes perception of the purpose of law, addresses one of the common critiques of traditional international relations theories and the newer theories of constructivism – that explanations are all one or the other.

 

State Behaviour in the International System P.1

State Behaviour in the International System P.3

State Behaviour in the International System P.4

State Behaviour in the International System P.5

State Behaviour in the International System P.6

1 H.L.A. Hart, The Concept of Law, 2nd ed. (1961; Oxford: Clarendon Press, 1994), 1.

2 Charles J. Reid, Jr. Preface to The Story of Law, 2nd ed., by John Maxcy Zane (Indianapolis: Liberty Fund, 1998), ix. “[L]aw must be understood as the unique product if particular nations’ backgrounds and cultures.”

3 Louis Henkin, How Nations Behave, 330. Henkin is responding to Morgenthau who, he argues, thinks of law exclusively in terms of judicial decision on particular questions, “rather than as a pervasive system supporting the society and influencing national behavior within it.”

4 J.L. Brierly, The Law of Nations, 6th ed., ed. Sir Humphrey Waldock (Oxford: The Clarendon University Press, 1963).

5 An organized society is defined as one in which the aggregate of people living together in a more or less ordered community, and having shared customs, laws, and organizations.

6 Glendon, Gordon and Osakwe, Comparative Legal Traditions; John Maxcy Zane, The Story of Law; Examples include the Code of Hammurabi of the ancient Kingdom of Mesopotamia, the Twelve Tables of Egypt, the Athenian Constitution of Ancient Greece, the Arthasastra of Ancient India, the Tang Code of Ancient China, and the Code of Justinian (Corpus Juris Civilis) from the era of the Roman Empire. Moreover, Judaic, Islamic, and Christian law were all founded based on sets of rules outlined in the Torah, Qur’an, and Bible.

7 Richard Chisholm and Garth Nettheim, Understanding Law: An Introduction to Australia’s Legal System, 2nd ed. (Sydney: Butterworths Pty Limited, 1984), 4. “Just as law has practical consequences for people living in a society, it is also the product of forces in that society. Law does not come down from the sky, or exist in a vacuum; it is one of our social institutions, and reflects the society in which it operates.”

8 Lawrence M. Friedman, Law in America (New York: A Modern Library Chronicles Book, 2002),9-10.

9 Rene David and John C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law, 2nd ed. (Free Press, 1978), 55. Law, like language is part of the culture of a people). Von Savigny also claimed that a nation’s laws would be revealed by methods of historical research (principal proponent of the historical school.

10 Friedman, Law in America, 16. Friedman’s story of the bridge goes as follows: “Imagine a community that lives on the banks of a swift and deep river. The only way across is by ferry, slow and cumbersome. The community demands a bridge; the citizens sign petitions, lobby, and put pressure on their government. Finally, the government yields, money is appropriated, and the bridge gets built. Once the bridge is in place, traffic moves swiftly back and forth across the bridge. The nature of the community changes. Now people can and do split their lives between the two sides of the river. Some live on one side and shop and work on the other; and vice versa. Many people cross the bridge every day. People come to think of the bridge as natural, inevitable – even as something they have a kind of right to have. The bridge affects their behavior, their way of thinking, their expectations, their way of life.”

11 This comparison between Australia and Germany is discussed in full in P.5.

12 Henkin, How Nations Behave, 30.

13 Ibid., 30.

14 Ibid.

15 Examples include Machiavelli, Gentili, Grotius, and the authors of American legal works such as Alexander Hamilton, James Madison, and John Jay.

16 Carr, E.H., The Twenty Years’ Crisis: 1919-1939: An Introduction to the Study of International Relations, 2nd ed. (London: Macmillan, 1946), 176. Law is simply a reflection of the “policy and interests of the dominant group in a given state at a given period” and consequently law cannot “be understood independently of the political foundation on which it rests and of the political interests which it serves.”

17 Higgins, Rosalyn, Problems and Processes: International Law and How We Use It, reprint ed. (New York: Oxford University Press, 1995).

18 Wheeler, Kosovo Bombing Campaign, 191. “In keeping with the theme of this volume, I argue that law and politics are mutually constitutive.”

19 See Simmons, “Why Commit?”; Cardenas, “Norm Collision”.

20 Some works have begun to consider the notion of domestic law as it pertains to state policy on international law. For example, see Simmons, “Why Commit?”; Cardenas, “Norm Collision”; Mitchell and Powell, “The International Court of Justice and the World’s Three Legal Systems”. However, each of these works focus on the very general categories of common law, civil law, etc. without taking into account the differences which exist between countries within each of these legal families. For example, France, Turkey, and Japan would all be classified a civil law states, but all have very different legal traditions leading to different attitudes about the law.

21 William Tetley, “Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified),”Louisiana Law Review 60 (2000): 682.

22 There are a number of other attributes of legal tradition discussed in the comparative law literature such as the nature of legal education and the mechanisms of the legal profession. However, I have selected the three attributes I believe will be most relevant when considering state interpretation of international law. For a discussion of some of the other attributes, see David and Brierley, Major Legal Systems; Glendon, Gordon, and Osakwe, Comparative Legal Traditions.

23 Ibid.

24 See John Locke, Two Treatises of Government 2nd ed. (Cambridge, UK: Cambridge University Press, 1988); Louis de Secondat Baron de Montesquieu, The Spirit of the Laws (Cambridge, UK: Cambridge University Press, 1989); Michel de Montaigne, The Complete Essays, trans. M.A. Screech (London: Penguin Books, 1991); Alexis De Tocqueville, Democracy in America, trans. Stephen D. Grant (Indianapolis: Hackett Publishing Co., 2000); Jean-Jacques Rousseau, Du contrat social (Paris: GF Flammarion, 1992).

25 For a discussion of the different interpretations of Constitutionalism between the two states, see Martin A. Rogoff, “A Comparison of Constitutionalism in France and The United States” Maine Law Review 49 (1997): 21.

26 U.S. Constitution, art. VI.

27 An understanding of the domestic legal tradition matters because it is at the domestic level –whether government or public – where acknowledgement and adherence occur. International law may be developed and agreed upon at the international level, among governments and diplomats; but it is at the domestic level, among the population, where it gains its authority. International law is incorporated into domestic legal orders – those legal orders founded on a state’s historical legal tradition – so that all citizens of a state, from the leaders to the general populace, are bound by its tenets – the tenets which form the framework within which all decisions are made. However, depending on what the historical development of the legal tradition has been and what legal institutions have come from such history, a state may be more or less able to incorporate international law into its domestic legal framework. The easier the incorporation, the more likely it will be that international law considerations form part of the basis for action promoted by the population. In those states where it is more difficult (or time-consuming) to transfer international law from the level of diplomats to the level of domestic law, attention and adherence to international law will be less. See Francis Boyle, World Politics and International Law, (Durham, NC: Duke University Press, 1985); Richard A. Falk, The Role of Domestic Courts in the International Legal Order (Syracuse, NY: Syracuse University Press, 1964), 30.

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