The Persuasiveness of Domestic Law Analogies in International Law

Abstract

Domestic law analogies are often treated dismissively in international law cases and scholarship. Yet they continue to find their way into arguments about international law and sometimes into international law itself. Rather than rejecting such analogies, this article dissects the process of analogical reasoning into three steps, drawing on insights from the study of analogical reasoning in other disciplines. The aim of working through the three steps is to assess when a particular domestic law rule or concept can 'fit' in the different international law context and thus provide the basis for a domestic law analogy in international law.