7 - Compliance research in legal perspectives

Summary

Da mihi facta, dabo tibi ius? Introductory observations on an interdisciplinary agenda

“Compliance is not a legal problem.” This is the traditional view of lawyers, which is by no means simply naive. Lawyers know of course about the problems of enforcement and the risks of litigation. But they are trained to find out whether some behavior is legal or illegal and they are paid to give good reasons that militate in favor of their client's viewpoints and interests. They can act on the assumption that no one will question that the enforcement of valid law in a Rechtsstaat is a matter of course, which is not susceptible to legal arguments and is hence beyond their professional responsibility. Compliance is something policemen, bailiffs and politicians should somehow ensure.

What is true for practicing lawyers is also true in legal academia. Research on compliance problems does not concern the validity of law and its normative contents. Such research could therefore be assigned to legal sociology – not a proper legal discipline. International law, however, has a different story to tell. In the account of Koh (1997), the issue of compliance constitutes the core problem of international law. The apparent contrast with the traditional perception of national legal systems is easy to understand. What lawyers can presume to exist within constitutional states, namely an authority that is entitled and committed to enforcing the law, is not available in the international system.