3.3 US law and international law
The nation’s founders, inspired by a strong desire to be accepted by other
sovereign nations as an equal, gave international law the status of ‘supreme
law of the land’ (US Const. Art. VI, §2). Since then, the United States has
become stronger and, as a consequence, less eager to enter into international
treaties, and to be restrained. Americans trust their own institutions and
mistrust supranational institutions that take powers and competences away,
even (or in particular) if those institutions aim at enforcing essentially
similar values to those embodied by the US Constitution. This does not
merely represent disdain for, or ignorance of, international law. First, international law is considered federal law, and foreign politics is a domain for
the federal government. Consequently the states have little say in its creation
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and fear loss of competences; courts are prevented, by the separation of
powers, from using international law to overrule statutes. International law
is dealt with as a matter of constitutional law. Second, the United States has
always been eager to justify its actions in legal terms; it is trying to develop
(or revolutionize) rather than simply break or ignore international law. This
is congruent with the general US view of law as shaped by process in accordance with societal needs rather than as a transcendent and depoliticized
natural law body.
3.4 Comparative law in the United States
In the beginning of the republic, US courts saw themselves in the
Continental European ius commune tradition and frequently cited
European, not just English, authors as well as Roman law sources (Hoeflich,
1997). Comparative law was relevant; the Second World Congress of
Comparative Law (the first after the Seminal Congress in Paris, 1900) took
place in 1904 in St. Louis (Clark, forthcoming). In the 20th century,
however, perhaps with growing self-confidence in US law, comparative law
became less fashionable in the United States. While there is much comparison between different state laws, internationally comparative law was taught
at some universities only, originally mainly by European immigrants, later
by some US American pioneers to the field. Today, comparative law is considered of vital importance, no doubt owing to perceived demands posed by
globalization, and is taught at almost any law school. But it is considered a
field separate from general law classes, and frequently its content is a very
basic introduction to (often stereotypical) basic characteristics of various
legal systems (Bermann, 1999; Reimann, 2002).
Lack of interest in comparative law is not so much due to the (often exaggerated) parochialism of the United States in general. Rather, the main
reason lies in legal education. In particular the first year of law school
emphasizes ‘thinking like a lawyer’, which means thinking like a US lawyer.
This often suggests, albeit not deliberately, that thinking like a US lawyer
is a universal way of thinking, and that the results of this reasoning, like
the results of developments in case law, are somehow natural and optimal
results of any legal systems. As a consequence, foreign law is often seen with
a strong US bias, and differences from US law are easily seen as deficiencies. Only in recent years, and in large part through the influence of other
disciplines (anthropology, sociology, economics) has there been renewed
interest in foreign and comparative law on the one hand, methodology of
comparative law on the other. Unfortunately, theory and practice of comparative law do not always supplement each other. Paradoxically, while US
law may be the most important reference point for many comparative law
studies, US comparative law itself is still in development.
