Customary International Law in State and Federal Courts

in Polyphonic Federalism

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226736624
Published online March 2013 | e-ISBN: 9780226736648 | DOI:
Customary International Law in State and Federal Courts

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This chapter addresses the implications of polyphonic federalism for incorporating foreign law into state and federal legal systems. The polyphonic approach to federalism offers an especially useful framework for addressing international law. Dualist theories have much more difficulty finding a place for the third melody of international law. Federalism has benefits for the elucidation of customary international law. States cannot confer fewer rights on their citizens, but they can confer more. The intermediate approach to customary international law would offer states that same ability. Polyphonic federalism favors those seeking to apply the law against defendants. But federalism was never designed to be neutral as to outcomes; it was designed to be liberty enhancing. Customary international law would provide another potential source of rights protection, which would be greatly magnified by the participation of the states.

Keywords: polyphonic federalism; foreign law; customary international law; state; rights protection; federal legal systems

Chapter.  3764 words. 

Subjects: Constitutional and Administrative Law

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