Domestic legal traditions and international cooperation: Insights from domestic and international qualification systems
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/01925121211028472 |
| Author | Shintaro Hamanaka,Sufian Jusoh |
| Date | 01 June 2023 |
| Subject Matter | Original Research Articles |
https://doi.org/10.1177/01925121211028472
International Political Science Review
2023, Vol. 44(3) 434 –452
© The Author(s) 2021
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DOI: 10.1177/01925121211028472
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Domestic legal traditions and
international cooperation: Insights
from domestic and international
qualification systems
Shintaro Hamanaka
Institute of Developing Economies (IDE-JETRO), Japan
Sufian Jusoh
Universiti Kebangsaan Malaysia, Malaysia
Abstract
The compatibility in terms of domestic systems that embed specific values of particular legal traditions is
a critical determinant of international cooperation. We analyze international cooperation on professional
qualifications because a domestic qualification system best showcases its distinct approach to social
governance. Civil law states, which value written rules and certainty, use paper examinations as a core
component of competency assessment of professionals, and upon international cooperation they opt
to harmonize paper examinations. Common law states regard track record as important in assessing
competence, and they often mutually allow professionals from partner states who have a good track record
to practice in their territory. Cooperation between civil and common law states is possible when both
parties make a conscious effort to align their domestic systems. In this case, an international mechanism
has features of harmonization and mutual recognition. We also consider how to generalize the findings to
explain states’ attitude toward inter-governmental organizations in general.
Keywords
International cooperation, legal traditions, harmonization, mutual recognition, qualifications, Brexit
Introduction
The central proposition of this study is that the compatibility in terms of domestic systems that
embed specific values of particular legal traditions is a critical determinant of international
Corresponding author:
Shintaro Hamanaka, Institute of Developing Economies (IDE-JETRO), 3-2-2 Wakaba, Mihama-ku, Chiba-shi, Chiba, 261-
8545, Japan.
Email: Shintaro_Hamanaka@ide.go.jp
1028472IPS0010.1177/01925121211028472International Political Science ReviewHamanaka and Jusoh
research-article2021
Original Research Article
Hamanaka and Jusoh 435
cooperation. We argue that states with different legal traditions prefer distinct types of international
cooperation and that cooperation between states with different legal traditions becomes effective
only when there is conscious effort from each side to align their domestic systems. Specifically, we
develop and examine the hypothesis that civil law states tend to harmonize domestic systems upon
international cooperation, whereas common law states embarking on international cooperation
tend to recognize decisions made by the partner and maintain their own systems.
The term ‘legal traditions’ refers to a historically conditioned background that defines approaches
to the nature of the legal system, the role of law in the society and the polity, and the proper organi-
zation and operation of the legal system (Zartner, 2014). We argue that legal traditions are trans-
lated into the specific institutional design of many parts of domestic systems. Hence, the problem
is not limited to laws per se. The compatibility of domestic/international systems differs from mere
relationship or consistency between domestic/international laws; for example, whether common
law states are more likely to join common law-type international arrangements. The (in)compati-
bility of domestic systems across states affect the modality and function of international coopera-
tion, which may or may not take legal forms. The problem is also not limited to the function of
particular regulatory institutions. The way in which the society is structured is different between
common law and civil law states, and such differences result in the differences in the institutional
design of various systems in the society in a fairly systemic manner.
There are various legal traditions in the world (Zartner, 2014). Among them, we compare states
with civil and common law traditions, which are in sharp contrast despite some convergence
(Mattei and Pes, 2008). Islamic law traditions have a large impact on states’ international behav-
iors, especially in legal domains, including attitudes toward international courts (Powell, 2020;
Powell and Mitchell, 2007). However, as discussed by Akou El Fadl (2012), most Muslim states
adopt either common or civil law systems and limit the application of Islamic laws to personal law
matters such as family law. Hence, we limit our analyses to the comparison between the two domi-
nant legal traditions.
This study offers a theoretically informed account for the modality of international mechanism
preferred by states with different legal traditions. Despite the mushrooming quantitative literature
on the impact of legal traditions, our understanding on ‘how’ remains under-developed. How legal
traditions are embedded into social systems and how such social systems affect the preferred form
of international cooperation are unanswered questions. Our knowledge on how and under what
conditions civil and common law states effectively cooperate is still limited. On the theoretical
front, we elucidate the mechanisms that link states’ legal traditions and their preferred form of
international mechanisms. We go beyond discussions on ‘legal matters’ narrowly defined and
extend the theory that emphasizes the qualitative difference in international mechanisms preferred
by civil/common law states and the continuity between domestic and international systems.
Empirically, we look into the modality of actual cooperation projects led by civil/common law
states as well as projects wherein both civil and common law states participate on equal footing
basis.
In this study, we analyze domestic/international mechanisms to ‘select’ people to exercise some
power. What we discuss is not the election systems but the systems to select people based on com-
petence who we call ‘experts’. Among various experts, we analyze professionals, who are experts
who are ‘entitled’ to make technical decisions effective within a society. For example, each state
has its own laws and regulations on the safety of buildings. Professionals are the ones who can
make a decision on whether or not the safety requirements are met. Considering the work of profes-
sionals to be an extension of laws is wrong. Professionals need to consult not only with laws and
regulations set by people, but also with the laws of natural science. They are ‘authority’, and the
world is full of technical decisions made by them. In fact, a qualification system develops in
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