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73 Notre Dame L. Rev. 1217 (1997-1998)


Virtually all of Mary Ann Glendon's work can be seen as part of a persistent effort to open some windows in the edifice of American law and allow cross-currents of foreign experience to blow fresh insight into the rooms of our republic. In her critique of contemporary strains of rights discourse in the United States, she makes the case against American insularity quite directly: "In closing our own eyes and ears to the development of rights ideas elsewhere, our most grievous loss is ... the kind of assistance ... that can be gained from observing the successes and failures of others." She illustrates this point in large part by contrasting the judicial styles of the United States Supreme Court and the European Court of Human Rights in their respective decisions regarding the criminalization of homosexual sodomy. Much of the strength of the European Court's approach, Glendon suggests, is due to the judges' openness to comparative experience and their sensitivity to the divergence of national legal traditions in determining both the scope of the norm at issue and the appropriate reach of the Court's resolution of the dispute.

In concluding that Northern Ireland's statute contravened the European Convention on Human Rights, the European Court relied heavily on its observation that "in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied." At the same time, the European Court acknowledged that all of the Member States had some sort of legislation regulating homosexual conduct, and on that basis "accepted that some form of legislation is 'necessary' to protect particular sections of society as well as the moral ethos of society as a whole." Such a search for common legal norms and approaches among the national laws of the Member States has become a routine element of the European Court's justification of its decisions, both in extending the reach of human rights norms and in limiting them. Among some comparatists, it has provoked effusive enthusiasm: "The European Court serves as a laboratory for the circulation of legal models that comparativists have dreamt of for many years."

In this essay I want to explore a little further the role that such inter-state comparisons play in giving content and scope to international human rights norms, with particular reference to the jurisprudence of the European Court of Human Rights. Glendon's suggestion that this strategy is one of the European Court's virtues deserves some further scrutiny. It is not immediately obvious that this should be the case. In principle, aren't we dealing with binding international, universal, human rights norms? Linking their requirements to the results of some comparison between states' national laws seems to deprive them of exactly the supranational status that they have achieved though international treaty. That may, in turn, invite an overly timid enforcement of human rights norms, where the least common denominator among the states surveyed will be the only identifiable standard. Conversely, to the extent that the technique is used not to assess compliance with already accepted norms but instead to fashion fundamentally new human rights claims, it could lead to the flattening of the diversity of national practices and cultures simply because a certain number of states have made common political decisions regarding contested social values.

These concerns are by no means limited to the European context, moreover, and are likely to be more pronounced outside of it. Thus, while the narrow focus of this brief discussion is on the European Court, I hope to draw from it some lessons for the uses of comparative law in international human rights more generally.

I conclude that what comparative law cannot do is precisely what the European Court's jurisprudence implicitly claims for it. It is not an objective "method" that yields clear conclusions about the proper scope of uniform international standards. It cannot give us the normative basis for making judgments about when common standards ought to be enforced and when diversity should be given freer play. Nevertheless, in part because of the tensions between universalist "common public law" aspirations and the particularist, relativist tendencies of a comparative approach to international human rights, inter-state comparisons can have both theoretical and practical value. They help strengthen common understandings by giving specific content to the scope of broad, underdetermined international human rights norms, while at the same time they help to reveal the contingency and particularity of the political and moral choices inherent in the specification and expansion of international human rights norms that are sometimes too facilely assumed to be "universal."


Reprinted with permission of the Notre Dame Law Review.



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