Academic

Worster on the Fragmentation of International Law

By Lawrence Solum

William Thomas Worster (The Hague University) has posted Competition and Comity in the Fragmentation of International Law (Brooklyn Journal of International Law, Vol. 34, 2008) on SSRN. Here is the abstract:

The international legal system encompasses a variety of legal norms, but the perceived increase in "fragmentation" of these norms has recently been seen as a problem for the system as a whole. Consequently, many writers have suggested forms of increased comity among international tribunals in order to combat the problems associated with fragmentation; indeed, locating harmonies among international legal regimes within a coherent international legal system appears to be the dominant trend. Yet these perspectives dismiss, or at the very least, largely overlook, the benefits of competition among international tribunals.

Fragmenting norms could provide opportunities for better norms, particularly since differing legal traditions bring differing norms to adjudication, all of which may have their relative strengths. This continual updating of law and legal dispute resolution is healthy for the law to maintain legitimacy while keeping up with social change. How popular courts weigh the need for equality, the right to a hearing, and so on might suggest a balance among principles that is the most just approach. Other tribunals may look to the decisions of more popular fora as examples of justice, and reform themselves and their image appropriately. Thus, increased competition may increase the diversity of legal norms and the legitimacy of the norms applied.

Any objection to the beneficial role of fragmentation is based on one's conception of justice and whether justice can be a democratic and competitive preference. If international tribunals are created by States in order to do justice among them, then being recognized as the most attractive forum is evidence that a particular tribunal may have a better appreciation for justice. Fragmentation may not be a problem to be solved, but rather, a sign that the international legal system needs to consider a variety of legal norms. As society's definition of justice evolves, so do many tribunals, not necessarily towards a top-down, constitutionalized, hierarchical system overseeing a coherent, unitary international legal order, or for that matter towards a network of friendly, lending, and borrowing professionals. Instead, they may affirm a bottom-up, vigorous system where different legal actors compete for the best realization of justice.

Full post as published by Legal Theory Blog on February 05, 2009 (boomark / email).