Domestic Analogy as a Temporary Solution in International Normative Theorizing

The globalization of law has initiated a new wave of innovation in international legal theory, uncovering overlooked dimensions of legality and encouraging the development of novel methodological tools to examine legal frameworks beyond the domestic context. In highlighting some of the challenges coming with the globalization of law, this paper will focus on the methodology of normative theorizing of international law, with a particular focus on the domestic analogy. I understand international normative theorizing as efforts to develop normative standards (e.g. constitutionalism, the RoL, and legitimacy) for international law, organizations, and global governance. Confronted with new forms of legality or law beyond domestic legal orders, scholars are motivated either to strech their domestic normative concepts or craft new ones bespoken to international/transnational/global law. Between conceptual innovation and stretching, I take on conservative attitude, arguing that there is sufficient reason to preserve the connection between domestic and international normative concepts. One thing that comes with this conservatice stance is that the use of domestic analogy as a method in international normative theorizing. Unsurprisingly, the domestic analogy has so far been the most common way of doing international normative theory, as many scholars turn their gaze to the domestic level to explain whether international law is just, legitimate, or observes the basic principles of constitutionalism. Despite the extensive literature on, say global constitutionalism, democracy, and justice, it remains largely unexplored under which conditions scholars are warranted to rely on the domestic analogy. The main purpose of analogical reasoning is to extend the explanatory scope of a concept beyond the domain where it is originally and traditionally applied. Thus, the domestic analogy gets problematic not when it is stretched but when it is overstretched in a way as to disregard the negative dimension of analogical reasoning, namely perceived differences. And this often happens when domestic institutional structures are held to be necessary conditions for realizing, say, the RoL or constitutionalism at the international or global level. This idealization results in the misleading assumption that normative concepts derived from domestic contexts are equally applicable to different context, be it international or sub-national, without any need for reinterpretation. All in all, I suggest reading the problem of conceptual over-stretching as a problem of idealization: Taking domestic institutional settings as necessary conditions to realize the values associated with a normative concept. Then, the article takes the discussions on the international RoL as a case study to cast light on the dangers that may come together with the use of domestic analogy. In doing so, it classifies the IRoL scholarship into three different waves and points out three common mistakes committed by scholars: i) equation of the IRoL with the authority of international law, ii) thinking of the ROL not as an interpretive but criterial concept, and iii) disregarding the fact that scholars may have reasonable disagreements on the purpose of the IRoL.