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 (ILT), 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, which involves deriving normative concepts and principles from domestic legal settings and applying them to the international sphere. Despite its extensive use (e.g. global constitutionalism), 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 by using the international Rule of Law (RoL) scholarship as an example. It argues that 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 RoL.