The (Mis)use of Domestic Analogy in the International Rule of Law Discussions: An Analysis from the Perspective of Conceptual Ethics

The globalisation 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. Among these tools, the domestic analogy remains particularly compelling. This approach involves deriving normative concepts and principles from domestic legal settings and applying them to the international sphere, offering a critical and normative lens for analysing international law. Despite the extensive scholarship on global constitutionalism and the adaptation of domestic concepts (e.g., constitutionalism and democracy) to the international level, when and how the domestic analogy can contribute to international normative theorizing remain to be explored. This article seeks to address this gap and contributes to the methodology of international normative theorizing. It argues that the domestic analogy is justified only when scholars refrain from idealizing domestic institutional frameworks or treating them as prerequisites for achieving goals such as constitutionalism or the Rule of Law (RoL). To illustrate the risks associated with such idealisation, the article critically examines debates on the international RoL, highlighting the conceptual pitfalls that arise from uncritically importing domestic institutional configurations into international contexts.