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Should International Law Be Part of Our Law?

NCJ Number
Stanford Law Review Volume: 59 Issue: 5 Dated: March 2007 Pages: 1175-1248
John O. McGinnis; Ilya Somin
Date Published
March 2007
74 pages
This paper compares American law and raw international law in presenting an argument on whether international law should become a part of American law.
Both American law and raw international law are imperfect. However, there are strong reasons to believe that raw international law is systematically more flawed than American law. The political processes that produce laws in America have stronger democratic controls and are less vulnerable to interest group capture than those that produce what we have called raw international law. The comparison provides a strong argument that Americans will be better off under a legal regime that rejects the use of raw international law to override domestic law. Only those international obligations that have been validated by domestic political processes should be part of our law because they alone can avoid the democracy deficit of raw international law. The arguments presented in this paper suggest a research agenda for the future. Future research should consider the degree to which this general analysis holds up with respect to particular issue areas. As globalization runs its course, the domestic world becomes full of international law. Raw international law is known as international law that has not become endorsed by the domestic political process. The penetration of raw international law into the domestic sphere has led to extensive debate over the desirability of this development. A major disadvantage of international law relative to domestic law is the lack of democratic control over its content, known as a “democratic deficit.” This paper analyzes this democracy deficit, concluding that raw international law should not displace domestic law because of its substantial democracy deficit. The paper is divided into four parts: (1) the rise and composition of raw international law; (2) the democracy deficit; (3) the doctrinal impact of the defects of international law; and (4) American law as better than international law. Tables, footnotes


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