Mireille Delmas-Marty is professor at the Collège de France (Chair of “Comparative Legal Studies and Internationalization of Law”). She has published many books on Criminal Law, Human Rights Law, European Community Law and Global Law. Among the most recent in English are Towards a Truly Common Law (Cambridge University Press, 2002); GlobalLaw: a Triple Challenge (Transnational Publishers, 2003); Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World, (Oxford, Hart Publishing, 2009). As editor, they include The Implementation of the Corpus Juris in the Member States (with J. Vervaele), 4 vol. (Intersentia, 2000); European Criminal Procedure (with J. Spencer) (Cambridge University Press, 2002; 2nd ed., 2007); China, Democracy, and Law: A Historical and Contemporary Approach (with Pierre-Étienne Will) (Brill, forthcoming 2011).
This exercise—“select the ten most important works which have shaped my intellectual persona”—troubled me, at first, because my research was determined mainly by events. I studied law, primarily French positive law, in the ‘60s, and my first publications were textbooks. Though legal systems had begun to internationalize, we did not know it; no one told us, and we did not see. But I had opened my eyes by 1974, when France began both to “constitutionalize” by allowing parliamentarians to refer a law to the Conseil Constitutionnel for review and to “internationalize” by ratifying the European Convention on Human Rights. These processes destabilized the legal field formally (transforming the legal order's hierarchical, static representation into an interactive, evolutionary one) and axiologically (announcing a new humanism by introducing human rights into the legal field).
International human rights instruments paved the way for an internationalization that also manifested in the economic area, for example with the European Common Market, Community, and Union. This movement accelerated at the end of the Cold War, when globalization strengthened the opposition between universalism and sovereigntism; the World Trade Organization and the International Criminal Court were created; and global risks (climatic or nuclear risks, for example) made interdependence obvious, raising the issue of global governance. Though 9/11 spurred a retreat into nationalism, it did not stop this movement, which had induced me to develop my research in three areas: the legal techniques and logics affecting legal formalism (foreseeability); the ethical values concerning legal humanism (legitimacy); and the actors and powers involved in global governance (effectiveness).
To accomplish the impossible task this journal has set, I chose works (and more broadly authors) that have accompanied me in at least one of these areas. Some have helped me formulate questions, others have helped me find practical and/or theoretical answers, and still others have stimulated my imagination.
Raymond Saleilles, École historique et droit naturel
When I became interested in comparative law and the harmonization of criminal justice policy, particularly in Europe, this text by French comparatist Raymond Saleilles gave me one of the keys for renewing legal formalism. Criticizing the German historical school's spirit “of immobilization, attachment to the past and almost mystical return to the old customary curiosities of law,” Saleilles turned to Rudolph Stammler's “natural law with variable contents.” But fearing it would “never be able to break free of absolute subjectivity,” he suggested increasing objectivity by using legislative analogy, collective legal conscience, and, above all, comparative law. Far from conflicting with the historical method, the comparative method would become its most fertile ally:
[B]y comparing judicial decisions, seen as concrete expressions of this transformed natural law's legal application, comparative law will tend to become, in its major themes, the common law of civilized humanity, and thereafter the subsidiary law that, more than local laws, will realize the union of principles while preserving each country's completely independent vitality and the distinct and variable adaptations of concrete applications in each country's case law.
This “common law” of humanity (which no one dares call “civilized” anymore)—derived from national practices although subsidiary because national law remains primary—“contains the principle of universality.” This universality has “variable contents,” however, and preserves the concrete applications of “each country's case law.” Saleilles thus imagined the technique of the “national margin of appreciation” more than fifty years before the European Court of Human Rights did. Now globalized under other names, such as “functional equivalence” (OECD Anti-Bribery Convention) or “differential treatment” (WTO and Kyoto Protocol), this technique, including different speeds of change, opens up the possibility of harmonization without uniformity and, therefore, of pluralism, which has yet to be ordered.
Henri Atlan, Les niveaux de l’éthique
To understand how the national margin of appreciation can organize pluralism when it replaces strictly hierarchical, stable relations with forms that are interactive (international law does not totally absorb domestic law) and evolutionary (the margin can vary over time), one must give up binary logic. Applying Lofti Zadeh's theory of fuzzy sets to international law, I hypothesized that imprecision does not preclude the rigor of legal reasoning and that a method using gradation logics could limit norms’ unforeseeability and judicial arbitrariness.
Emphasizing guiding principles rather than technical rules, this method brought me closer to the work of Ronald Dworkin and John Rawls. At the international level, however, consensus on a few major principles does not guarantee agreement on their application (and states frequently understand common principles differently). Misunderstandings must be made apparent, and conflicts clarified and then reduced through “judicial dialogue” and the search for what Rawls calls “overlapping consensus” (Political Liberalism, 1993).
However, some conflicts seem irresolvable (corporeal punishment, gender-based discriminatory practices such as female mutilation, and the like). In such situations, I turned to biologist Henri Atlan's work on complex systems and bioethics, mainly, his theory of three ethical levels: first, the obviously universal level of pleasure and pain that inspires moral indignation, which is sometimes effective but easily manipulated; second, the institutional level, which national laws render foreseeable but is marked by the promotion of different values that characterize relativism; and third, a metaethical (or metalegal) level of a universal nature that has yet to be built. To do so, the first two levels must be used: thus, the impetus given by moral indignation allows for “relativizing the relativism” of the second level through a process of harmonization that makes systems more alike without eliminating all differences. And this process sometimes prepares for the hybridization that fuses them at the third level.
Antonio Cassese, Dissenting Opinion in Erdemovic, International Criminal Tribunal for the former Yugoslavia (ICTY), Oct. 7, 1997
Since the first ad hoc international criminal tribunals were created, criminal justice has become a kind of laboratory for observing the processes of hybridization. With judges from different traditions, the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) blazed the trail the ICC is now following. Among these judges, Antonio Cassese, an eminent internationalist known for his engagement in favor of human rights, was the first president of the ICTY and did the work of a pioneer, particularly, in his dissenting opinion in the Erdemovic case.
Believing international law no longer follows the traditional, interstate Grotian model but, rather, a suprastate model evocative of Kant's cosmopolitan vision, this professor cum judge looks for practical applications using the comparative approach. The ICTY had sought to simply “maintain a balance between the accusatory procedure of the common law systems and the inquisitorial procedure of the civil law systems, whilst at the same time ensuring the doing of justice.” But Cassese explained that “[i]nternational criminal procedure results from the gradual decanting of national criminal concepts and rules into the international receptacle,” not from a corpus of uniform law. Because “international criminal proceedings … combine and fuse” the accusatorial and inquisitorial approaches, “mechanical importation” of concepts from one nation's law into international criminal proceedings “may alter or distort the specificity of these proceedings” (italics mine). For me, this is the best definition of the process of hybridization, which is necessary to avoid hegemonic universalism.
Later, in fact, his “combine and fuse” analysis materialized in the institution of a pretrial judge cum pretrial chamber and the increased power of victims, now represented by attorneys. But hybridization, which is still limited to Western systems, must open up to other traditions, because the new formalism makes sense only if it incorporates a new humanism.
Hannah Arendt, Condition de l’homme moderne (The Human Condition)
When I began studying human rights law in the 1980s, I found arguments for questioning the sense and nonsense of legal humanism in The Human Condition.
Criticizing Marx's use of the concept of labor, Arendt makes a distinction between Labor, Work, and Action. Relating Labor to life (chapter I), she enlightens the debate on “human” rights by showing that human life, limited by a beginning and an end, follows a linear movement distinct from nature's perpetual, cyclical movement. If we accept her idea that birth and death “are not natural occurrences, properly speaking,” then we understand that human rights must not be considered natural; on the contrary, they are a protest against nature.
As such, they participate in “humanization,” the process of ethical evolution making the human species more humane. The term “process” is particularly important; Arendt associates it with the “two entirely new sciences of the modern age,” natural science and history. Based on the human experience of Action (chapter 3), it marks both the frailty of human affairs and their “extraordinary resiliency.” Human rights law's fragility needs no demonstration here; witnessed daily, it calls into doubt these rights’ usual presentation as “founding” concepts, “fundamental” rights, or even a “base” on which to construct the rule of law.
Seen as “processes” for transforming legal systems, however, these rights have “extraordinary resiliency,” as illustrated by the progressive abolition of the death penalty in Europe, or the absolute prohibition of torture and cruel, inhuman, or degrading treatment or punishment imposed by the ECHR as a nonderogable right, even in time of war or other public emergency, like terrorism.
But to be enforceable everywhere, human rights must be recognized by all cultures. As Arendt underscores, humanity is pluralistic: “No man can be sovereign because not one man, but men, inhabit the earth.”
Onuma Yasuaki, “Towards an Intercivilizational Approach to Human Rights”
The universalism of human rights was called into question in June 1993 at the Vienna Conference, namely by the Bangkok Declaration, which “expressed a relativist or particularist [sic] perspective of human rights, stressing the respect for national sovereignty … as well as the recognition of national and regional particularities.” And despite the active participation, described by Mary Ann Glendon (A World Made New, 2001), of passeurs such as the Chinese diplomat Chang Pengchun (who supported the French representative, René Cassin, in putting the principle of equal dignity at the beginning of the Universal Declaration of Human Rights and had “conscience” added to “reason” to characterize human beings), the “universal” declaration was derived exclusively from Western texts.
But universalism must not be confused with universalization. In this article, Japanese professor Onuma Yasuaki differentiates, clearly, between the Declaration of Asian Governments and that of 110 NGOs, which “expressed a universalist perspective, stressing the importance of women's rights, democratization of the development process and de-militarization.” Rejecting a Western-centric universalism, he believes in an “inter,” then “trans” civilizational approach as more likely to contribute to the evolution of human rights, because “the strength of the idea of human rights lies in their universalizing power.” His dynamic vision of history leads him to underscore that national cultures must be reinterpreted because they “change over time,” and to call into question “a narrow, liberty-centric notion of human rights.” The universalizing nature of human rights is tied to their indivisibility, which, though weakened by having been separated into two covenants (1966), was reaffirmed in Vienna—as was “the right of self-determination of peoples and the right to development,” which Onuma also supports.
However, “liberating human rights discourse from predominant Westcentrism” does not resolve every conflict between universalism and a cultural and, more broadly, civilizational, diversity. For this, I turn to philosophers.
Paul Ricoeur, Le juste, I & II
In my search for a metalegal level where formalism joins humanism, meeting French philosopher Paul Ricoeur was decisive. We were members of a small group defending the sans papiers, immigrant workers facing deportation with their families. Our situation resembled what Ricoeur described in “Le juste” as “the refusal to be trapped in an apparently restrictive dilemma in which law, as immutable, universal and binding, conflicts with conscience, reputed to be variable, circumstantial, spontaneous and eminently subjective.” Faced with choosing between “gray and gray or, sadder still, between bad and worse,” we were caught in what he calls “the tragedy of action.”
But this is not the only tragedy. The conflict of cultures may be called the tragedy of reason. When reason's supposed universalism escapes us, dialogue is insufficient. Ricoeur proposed, therefore, a “paradigm” of translation, which creates resemblance where there seems to be only multiplicity. Applying this paradigm in the legal field, François Ost (Traduire, 2009) distinguishes translation from both argumentation (a way to keep fighting, trying to win) and judicial interpretation (which presupposes complicity between sender and receiver). Translation helps construct alterity rather than assimilation and reconciles “Universalism and the Historical” because it encourages digging deeper, as Ricoeur demonstrated with the image of a sphere: “if I try to run on the sphere's surface, to be eclectic, I will never find the universal because I will be merely syncretic; but if I dig deeply enough into my tradition, I shorten the distance to others in the dimension of depth … at the surface the distance is huge, but if I dig deeper, I move closer to the other who is following the same path” (La Nature et la Règle, 2005). Taking this less obvious path of digging deeper is probably also a condition for democratic global governance.
Jürgen Habermas, Après l’état-nation, une nouvelle constellation politique1
Many contemporary studies restate the Kantian idea of global “cosmopolitan” governance, assumed to be peaceful. But Habermas's work was the first to highlight the specificity of the “post-national constellation.” Noting that “our imagination is paralyzed” and that “the institutionalization of procedures that provide for granting and universalizing common interests can hardly occur within the organizational framework of a global state,” Habermas led the way, rethinking the role of civil society and the public political space and elaborating plans for “cosmopolitan democracy” on a less rigorous basis of legitimation proper to nonstate forms of organization.
His plea for a “planetary interior policy” highlights the fact that to extend to the entire planet, governance must necessarily include all the planet's citizens. Such governance, therefore, precludes all forms of exclusion; it cannot be based on a common enemy or a shared past. According to Carl Schmitt, the danger is that it will lead to a generalized civil war. Global terrorism already gives us a glimpse, as Habermas explained after 9/11: “I keep asking myself if my entente-oriented conception hasn’t become ridiculous” (Le concept 11 septembre, Dialogues à New York avec J. Derrida, Galilée 2004).2
Nevertheless, his earlier observation still applies: “the globalization of risks objectively united the world a long time ago, making it an involuntary community based on the risks run by all” (La Paix perpétuelle: le bicentenaire d’une idée kantienne, 1996).3 To respond to global risks, such as climate change or environmental degradation more generally, we have to transform this involuntary community into a voluntary one, take charge of our common destiny, and imagine new tools suited to global governance—like the market for greenhouse-gas quotas or the legal concept of ecological prejudice—and new obligations, such as the protection of future generations.
Stephen Breyer, Pour une démocratie active (Active Liberty)
Lacking an executive and legislators, global governance depends mainly on judges. International courts have proliferated while national judges, particularly on supreme courts, have become bolder. Even the United States has discovered interdependence, and Justice Breyer symbolizes an open approach in welcoming references to foreign legal decisions. He joined the majority in invalidating a state law criminalizing certain forms of homosexual conduct (Lawrence v. Texas, 2003), citing a similar case from the European Court of Human Rights, and in striking down state laws applying the death penalty to sixteen- or seventeen-year-olds convicted of capital murder, noting that no other country applies the death penalty to such offenders (Roper v. Simmons, 2005).
In Pour une démocratie active, Breyer indicates that the number of cases involving foreign or transnational law has been growing rapidly. Some justices and other commentators, nevertheless, criticize the practice of referring to foreign law and, after Lawrence, some members of the U.S. Congress members introduced bills prohibiting the federal courts from using foreign law to decide constitutional issues. Paradoxically, this controversy demonstrates the importance of the community of judges emerging through transnational judicial dialogue.
But judicial dialogue alone is insufficient, where international law is concerned, as Breyer later explained in Medellin v. Texas (2008). Though the United States had accepted the International Court of Justice's jurisdiction, the majority refused to apply that court's decision concerning Mexicans sentenced to death. In his dissenting opinion, Breyer considers that the U.S. treaty obligation to comply with the ICJ judgment is enforceable without congressional action beyond Senate ratification of the relevant treaties: “the majority … looks for the wrong thing … using the wrong standard … in the wrong place … it takes a wrong turn.” And, finally, “in a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.”
Tcheng Chao Yuen, L’évolution de la vie constitutionnelle de la Chine sous l’influence de Sun Yat Sen et de sa doctrine
This 1937 doctoral thesis highlighted for me that the search for new models of governance is not limited to the twenty-first century nor to the Western world. Its unknown Chinese author Tcheng Chao Yuen explains how, at the beginning of the twentieth century, Sun Yat-sen derived a theory of “five powers” by crossing ancient China's “constitution” with the Western model.
Both comprised three branches of power. In China, these were the sovereign (legislative, executive, and judicial functions), the examination branch (independent high-level officials recruiting civil servants), and the censorate, which checked abuses of power by the sovereign and civil servants in such a way that it is sometimes considered a “bud of democracy.” In the West, examination is an executive function, the legislature exercises the checking function, and the judiciary is independent. Believing the simultaneously legislative, executive, and judicial powers of the sovereign “represented an absolute monarchy, an impossible tyrannical political power in the age of democracy,” Sun wanted to reform this branch of power while keeping the other two “as the best elements of [China’s] ancient institutions.”
Illustrated by the 1936 draft constitution, this theory provides an example of hybridization. At a time when constitutional review was rarely practiced in Europe, it could have led China to a sui generis review associating the censorate's checking function with independent judicial powers and could have facilitated the emergence of global governance. Sun was probably familiar with the Great Book of Unity (Datong Shu), which his contemporary Kang Youwei began writing in 1884 during his exile in Japan. Published in China in 1913 (and in London as The One World Philosophy of K’ang Youwei in 1958), this book provides a premonitory outline of “the three ages of uniting nations into one world” and may underlie Sun's hybridization.
Édouard Glissant, La cohée du Lamentin
“For us, the poets of the South, our subject cannot be the spring and the meadow, but the bush, the inextricable, the quake, the cyclone, sudden and unexpected … our poetics will be an excess of excessiveness.” We are far from the balance symbolized by the scales of justice! But it is in the practice of excess that poet-philosopher Édouard Glissant seeks a counterpoint to savage globalization: not retreating into oneself but promoting mondialité, as a “supportive diversity” (“diversité solidaire”).
“Supportive diversity” is precisely what I seek through “ordering pluralism.” Conscious of the magnitude of the changes necessary, Glissant urges us to “act in one's place” while learning to “think with the world,” whereas, for millennia, the humanities formed and closed around their own systems of thought. Legal systems must also learn to “think with the world,” because state-identified law cannot respond alone to globalized flows and global risks.
The poet shows why legal concepts give way to transformative processes. Judicial dialogue is an essential process of coordination because “changing by exchanging without losing or denaturing oneself” is to “enlarge our imaginations”: excellent response to Justice Scalia in his debate with Justice Breyer. Similarly, the models developed by crossing accusatory and inquisitory procedures, or Western and Chinese powers, could nourish what Glissant calls the “principle of creolization,” which enriches the hybrid with unforeseeable results; as the world's places reveal themselves, they become “common places” yet bearers of new meanings.
Whether they concern formalism, humanism, or governance, legal changes could take inspiration from what Glissant calls “tremorous thought,” “which is neither fear nor weakness, but the assurance that it is possible to approach such chaos, to last and grow in this unforeseeable.” The only way, perhaps, to transform the world's great legal disorder into a pluralist global order.