Domestic law and ‘civilized states’: the general principles of law revisited

Abstract

General Principles of Law-the third source of law set out in Article 38(1)(c) of the Statute of the International Court of Justice-explicitly links the domestic and the international. Principles are drawn from the domestic laws of nations and transformed to be applicable on the international plane. But which nations? The use of the term ‘civilized’ is dismissed by many as an artefact of the past, no longer relevant in the modern use of the source. We argue that to the contrary, the modifier of civilization has limited the use of the source to, Western countries, with few notable exceptions. We argue that this trend has continued to the modern day, and further, that this is not accidental. The ‘civilizing’ mission of international law is well expressed in the use of Article 38(1)(c), and the need for horizontal generality has fostered a (lazy) comparativist methodology that takes (Western) common and civil law systems as short-hand for all legal systems. We argue that a new understanding of General Principles should be advanced, one that goes beyond not just the Concert of Europe but also beyond state-based conceptions of international law and looks to truly global principles. Show more