INTERNAL LAW AND INTERNATIONAL LAW: FROM COMMON LAW TO CIVIL LAW

This paper examines the process of progressive adaptation of national legal systems to the “civil law” legal system. The steady and widespread process of drafting legal instruments for legislative purposes at international level in order to “unify” the private law of the national legal systems confirms this evolution. At this regard, it is to be highlighted the activity conducted since many years by the International Institute for the Unification of Private Law. The same phenomenon is happening within international public law by its progressive and steady “codification” through the multilateral international treaties. The process of progressive harmonisation and unification of national legal systems implies a basic choice for “civil law” instead of “common law” whose raison d’etre and purpose is to guarantee a higher legal certainty in the inter-individual legal relations either of private or of public persons. The “codification” of private international law has the purpose of harmonising national legal systems of States in order to facilitate legal relations and international “circulation” of national legal acts. Yet, the “codification” of international public law raises some doubts because the attempt to create “positive law” or to “crystallize” legal relations between States at international level is not convincing as a matter of law and fact. In fact, interstate legal relations are highly variable due to the ever-changing underlying political and economic grounds. Concerning the means, forms and timings that characterize the adaptation of international public law to such grounds and related changes is very different from the way States’ legal systems adapt to new requests coming from national societies. The paper also examines the role played by case-law in the relationship between “civil law” legal systems and “common law” legal systems.