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Comparative Legal Studies and Internationalization of Law

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Mireille Delmas-Marty

Comparative Legal Studies and Internationalization of Law

Inaugural Lecture delivered on Thursday 20 March 2003

Mireille Delmas-Marty
Translated by Liz Libbrecht

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1In this day and age when law seems to be giving way to force, presenting a Chair of Legal Studies may seem somewhat misplaced. All the more reason to take Nietzsche’s example, to be assertive, resolutely untimely, and to meditate on what he wrote in 1873 after Germany’s military success: “a great victory is a great danger”; for the illusion of believing in the victory of a particular form of civilization, he said, could lead to the defeat of the spirit to the benefit of the Empire. Whether it be a defeat of the spirit or of the law, we need to take a step back from the events of the day to be able to see clearly.

2Mr Administrateur, my dear colleagues, once again by hosting a Chair of this nature, you are expressing both loyalty and foresight.

3Loyalty to he who was one of the fathers of legal humanism before being the Collège Royal’s initiator. In 1508, at the dawn of the fertile yet troubled sixteenth century, Guillaume Budé printed his Annotations sur les vingt-quatre premiers livres des Pandectes, which was to pave the way to a renewal of legal studies.

4Budé was not particularly sympathetic to professors of law: “a terrible habit urges them to write: as soon as one of them has managed to be appointed professor of law, he is authorized by the public’s connivance to make new comments; but instead of limiting himself to interpreting the real measures of old laws, he imagines false ones”. He recommended deleting all such comments and allowing only a few authors whose qualities of form were compatible with the “severe and profound science of law”. His advice was followed by Cujas, with regard to Roman law, and by Dumoulin, to French law. Dumoulin, an alumnus of the Collège Royal, boldly endeavoured to reduce all customs to a few common principles, with the then utopian objective of creating a single code for the whole of France. Budé, above all a philologist, resolutely struggled against a “hideous jargon that the early masters of science would not understand if they came back to life”. Were he to find himself amongst us now, I dare not imagine what he would think of the “internationalization of law” that is developing way beyond the jus commune and that is compelling us to use ghastly neologisms, for want of words to denote unusual forms.

5For this is a matter of foresight. By combining a method – comparative studies – with an ongoing process – the internationalization of law, that is, its extension beyond national borders – this Chair looks to the future, as uncertain as it may be. Of course current events tragically highlight the absence of a real legal world order. The collective security system of the Charter of the United Nations has shown its weaknesses and law has been unable to disarm force. Conversely, however, force cannot prevent this unprecedented extension of law, to the extent that no State, even the most powerful, can lastingly override it. In spite of appearances, it is no longer possible today to ignore the superposition of regional, national and global standards, nor the over-abundance of both national and international institutions and judges, with expanded jurisdiction. The new realities are causing law to evolve into complex and highly unstable interactive systems that are perhaps more symptomatic of profound change than of the defeat of law: we are faced with a change in the very conception of the legal order.

6This is why we probably need what Bachelard called the imagining forces of the mind, which he placed along two axes: “the ones”, he wrote, “enjoy the picturesque, variety, the unexpected event”, while the others “delve to the depths of being; they want to find both the primitive and the eternal in being”. Is this not the work of the comparatist: curious to discover the extreme variety of legal systems, he also sometimes delves, searching beyond diversity for something which, if not eternal, is at least universal or universalizable? The something that, at the Congress of Paris in August 1900, Raymond Saleilles described as “the fundamental unity of universal juridical life”, and that, during the same period, Shen Jiaben presented in a report to the Emperor of China as a “grand juridical unity of the world”, calling for nothing less than the merging of Chinese and Western law.

7But the comparatists’ dream has (already!) come up against the violence of war, and for the past half-century it has been up to international law, in its most innovative forms which no longer identify law with States only, to give a legal existence to the universal. Over and above the “Universal” Declaration of Human Rights, humanity has been recognized since the Nuremberg trials as the victim of crimes called, precisely, crimes “against humanity”. It has thus become the owner of a “common heritage” that commits it with regard to future generations. The term encompasses the world cultural and natural heritage, annexes the Moon and other celestial bodies, and goes so far as to include, “in a symbolic sense”, the human genome (UNESCO Declaration).

8Will this law, which has thus evolved from inter-State to super-State, albeit only in fragments, ever serve the purpose of a common language, a common wisdom? While there is no guarantee of that, we do need to hope for it more fervently than ever, provided that we do not divide the imaginative forces of law. It is together, in this “dialectique alerte” so dear to Bachelard, that they can nurture the imaginary by working on the diversity of apparent forms and still descend “into the essence of being” to find “the sound constancy and fine monotony of matter”. In other words, it is only if history and comparative law inform international law, and if the comparative method integrates the advances of international law, that the ongoing movements will be able to be embedded in a new humanism, notwithstanding present upheavals.

9The sheer size of the task that you have entrusted to me has emboldened me. But this audacity has come from you, my dear colleagues, and particularly from Pierre-Étienne Will and Anne Fagot-Largeault, who supported this project and convinced you of its relevance. In the next few years I will have to endeavour, if not to carry it out entirely, then at least to get it running.

10I am indeed not the only one to take this route. It is reassuring to have the great masters to inspire us, and I have not forgotten that comparative law was born at the Collège de France with the Chair of “General and Philosophical History of Comparative Legislation” entrusted to Eugène Lerminier in 1831. As early as 1832 he boldly expressed a universalist conviction: “We can say that there will be a state of the world where humankind will say ‘me’ and will do so, not simply as a chimera or utopia, but as a powerful and real fact”. That was however somewhat premature, especially since he was fiercely challenged a few months later for rallying to the July regime – to the point of being forced to skip his opening lecture on 26 November 1838. The unfortunate Lerminier, who ended up resigning in January 1849, had moreover risked criticizing Balzac and was consequently regarded by Madame Hanska as the great man’s “personal enemy”. Delighted by the episode of the lecture where, according to her, “he had cooked apples thrown at him”, she claimed to regret only “that they had not added some raw apples which he certainly deserved”.

11The example is therefore only partially reassuring, for it reveals the conflict to which the proximity between legal studies and political engagement can lead when ideology is involved. A Chair of the “History of Comparative Legislation” was nevertheless entrusted to Édouard Laboulaye in 1849. He chose to start his lecture series with a study of the American constitution, and in 1869 founded the Société de Législation Comparée, still seen as a Mecca for this discipline.

12International law, in turn, as a continuation of the former Chairs of the Law of Nature and Nations was to enter the Collège de France in 1980. From the outset, in his inaugural lecture, René-Jean Dupuy refused the postulate of linear progress and lucidly described the tensions between power and law. He put forward two models that have since then continued to clash: the relational (inter-State) model which juxtaposes sovereign powers, at the risk of “setting them against the ascendancy of the institution”; and the institutional (super-State) model, which inspired the creation of the International Criminal Court, but was to assert its universalist ambition only by recognizing national diversity.

13It is now law as a whole that stands on the frontline and I am fully aware, deep down, that if legal studies are back on the programme, the honour is due not only to my own merit and work. I have had the good fortune of being surrounded by colleagues who have taught me in their respective fields, and at the same time I have experienced the joy of being accompanied by others, younger than me. This has been like a huge family whose presence across the world has given me confidence, because they will know how to carry on paving the way and inventing the rest of the road.

14But Ladies and Gentlemen, dear friends, is there really only one road? And how can we define the purpose of this Chair when the naked eye sees only an accumulation of fragments, countless beacons scattered randomly in diverse places, pointing in different and sometimes contradictory directions? 

15Consider, first, their number, for believing that the “deregulation” accompanying economic internationalization is the opposite of regulation is an illusion. In reality it is a matter of redeployment by multiple public and private actors, and by way of incentives, negotiations and flexibility that call for temporary, evolving and reversible norms. This brings to mind the pluralist vision of Santi Romano, who as early as 1918, gave up identifying the law with the State. Not that it is always about actual orders instituted as such; I see it more as a plurality of normative spaces, including within an international law that is itself fragmented. From plurality to proliferation, there is ample cause for States to be concerned.

16A study by the Conseil d’État on “international norms in French law”, carried out at the Prime Minister’s behest and published in 2000, notes that “changes to the constitutional framework … as well as the adoption of international and community norms, in increasingly diverse fields, has over the past ten years produced major shifts in the place that French law grants to exogenous law”. The quoted figures are startling: with regard to community law alone, over 68,000 texts have been produced since its origins, notwithstanding new instruments such as common actions or framework decisions. While some of these are admittedly amendments or temporary texts, the fact remains that international law is increasingly referred to in national courts.

17Whereas community law was originally limited to technical issues, today it influences entire sections of national law. And the future European constitution is unlikely to slow down the process. On the contrary, the legislators are asked to ensure “that the European dynamic does not come to a halt”.

18This dynamic is moreover reinforced by the impact of the European Convention on Human Rights which compels States to legislate in certain domains such as telephone tapping, where no one ventured to go, or to alter very old and subtle balances concerning, for example, the role of the government commissaires in the Conseil d’État or that of the avocats généraux at the Cour de Cassation. No section of the law is spared. As Jean Carbonnier amusingly pointed out: “The Strasbourg Court has got out of bed; the problem is that we don’t know how to get it to go back”.

19Especially since global law is also proliferating. While the many conventions adopted by the United Nations Organization (UNO) with regard to human rights are more impressive in number than in visible effects, economic globalization, activated by the end of the Cold War, has given new impetus to world trade. The entry of China into the World Trade Organization (WTO) on 11 December 2001, for instance, triggered a third wave of reforms, after those of 1978 and 1992, leading to a major overhaul of Chinese commercial law. The Protocol on the Accession of the People’s Republic of China to the WTO even imposed general principles that could entail broader changes such as the disappearance, at least partially, of discretionary measures or the institution of a form of control on power excesses.

20Let us not however be over-optimistic, for economic development does not automatically mean the rule of law – unless civil and political rights are simultaneously incorporated by the ratification of the Pact drawn up by the UN, but the UN lacks the means to provide incentives to this effect.

21The issue is that from one organization to the next, the loci of the internationalization of law remain literally and figuratively scattered.

22Jean Carbonnier called European rights “rights from nowhere”, adding ironically that “nowhere could be utopia in Greek; but utopias are poetic and ethereal, whereas such capitalization of interests and ambitions has built up around European rights that it would take nothing less than a volcanic eruption for these legal Babylons to collapse”.

23Yet the model must be attractive, as other regions are starting to set up legal systems as well. To be sure, the integration potential varies, from a simple framework of mutual consultation in Asia (Asean) or economic cooperation in the Asia/Pacific zone (Apec), to a free-trade zone in North America (Alena) or customs union in South America (Mercosur), to an organization of harmonization of business law between African countries of the free zone (Ohada). At least these systems could in the future influence national rights, especially since various regional instruments to protect human rights are included. But that future still seems distant: barring a few exceptions, and in the absence of ratification or control, their effectiveness is for the moment virtually nil.

24On a global scale it is moreover necessary to take into account the privatization of standards. Arbitration in international commercial law is largely governed by private sources, and self-regulation is developing in the form of codes of conduct, corporate ethics or, more recently, eco-labels and social labels. These tools are intended to strengthen observance of ecological and social rules by making consumers more responsible. However, although useful, self-regulation cannot be a substitute for regulation by inter-State organizations, the only agencies that guarantee common interests. Yet the dispersion is such that, between the UN and the specialized organizations (for labour, health, intellectual property or trade), their effectiveness seems inversely proportional to their numbers, at least in the absence of proper legal control. We know that the International Court of Justice instituted by the Charter of the United Nations is simply a court of arbitration, subject to the will of States, and that there is no real court for judging human rights violations on a global scale. Unless the Dispute Settlement Body set up by the WTO starts to take on a legal role and international criminal courts start, despite resistance, to lay the foundations of global justice.

25But as justice globalizes, it is confronted with contradictions in determining the direction and the meaning of the internationalization of law. One such contradiction is appearing between ethical globalization, implying active support to States, and economic globalization, often reflected in their powerlessness. It is also observed between the very idea of universalism, which presupposes solidarity, sharing and the struggle against poverty, and, by contrast, market society, characterized by growing competition and inequalities.

26Conciliation should have been facilitated by the indivisibility of fundamental rights, enshrined in the Universal Declaration of Human Rights, but the principle has waned with time. In 1966 the adoption of two distinct pacts led to a severance of civil and political rights from economic, social and cultural rights, left virtually uncontrolled. This was followed by the creation of the WTO in 1994, which separated economic rights from social rights.

27In this respect the European experience may seem innovative. Despite the existence of two courts, symbolizing the separation of the market and human rights, the judges do endeavour to resolve the main contradictions by way of cross-referencing. However, they are able to do so only on an ad hoc, case-by-case basis. The Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, was a new step forwards which replaced the bipartite division with a presentation in six sections: dignity, followed by the main freedoms, equality, solidarity, citizenship, and justice. Once enshrined in the constitution, the Charter should be legally binding and apply not only to States but also to economic players. Eventually, it may make it possible to combine the mechanisms of market regulation (opening of markets and free competition) with the implementation of fundamental rights. Defendants are already starting to invoke it, and judges refer to it as a source of inspiration. This way of anticipating a political decision is once again highlighting the strength of the law and the power of judges, destined to resolve contradictions that are simply the reflection of political vacillation. Once again, but in terms that have perhaps been renewed by an internationalization which, by weakening States, is resulting in the growth of the “force of form” that Pierre Bourdieu described as “the force of law”.

28As I present a Chair devoted to legal studies, how can I not mention, with emotion, this man who was one of the great figures of contemporary thought? Bourdieu was not fooled by juridical formalism. He considered that those who contrast rational law and magical law, as Max Weber did, forget that “the most rigorously rationalized law is still just a successful act of social magic”. Magic and research are rarely good bedfellows, and when magic is at work, any attempt at scientific work seems to be destined to failure. In its implacable logic, this type of sociology of the judicial field would result in the impossibility of law, or rather of a science of law. We sometimes discussed this and he agreed, nevertheless reassuring me as to the legitimacy of my research since, he said, we know that you know. I was likewise reassured, my dear colleagues, by the scholarly conversations that I had the pleasure of having with you during the visits that customarily precede an election in this institution. Your gracious attention nurtures in me a sort of practical wisdom that does not foretell the abolition of law – this would certainly be neither the time nor the place –, but endeavours to find methods to avoid the sacralization of texts and the peremptory certitudes of experts.

29I see two such methods, like two precepts to accompany the course of these years of lecturing on which I am embarking today.

30The first, embedded in the name of the Chair itself, will consist in examining the interactions between international and national laws. Not only will the comparative studies have a cognitive role, but they will also have a resolutely critical one. Based on the diversity of systems, comparative law calls into question a process of internationalization that is too sure of itself: sometimes bureaucratic, striving for unification on a detailed level when it is easily achieved, yet giving up such unification when it would be useful, and sometimes hegemonic, unceremoniously imposing the law of the strongest.

31The role of comparative law is admittedly variable. It has little to do with the traditional conception of an inter-State internationalization. Reference is made to national rights to identify – in the somewhat haughty wording of the statutes of the International Court of Justice – the “general principles of law recognized by civilized nations”. The statutes of the Criminal Court more openly stipulate, albeit subsidiarily, the “general principles of the law determined by the Court on the basis of national laws representing the world’s diverse legal systems”. But huge resources would be required to know all the legal systems and verify their compatibility with international law. Otherwise, the reference to comparative law serves in fine more to legitimize the judges’ decisions than to guide their interpretation from the outset, as we sometimes now already see with the international criminal courts for former Yugoslavia and Rwanda. At best, the judges merely compare common law and Roman-Germanic systems, as a relic of the concept of “civilized nations” that appears to reduce the others to progressive acculturation. Finally, by way of a strange feedback loop, the incorporation of national practices into international custom results in national judges becoming both the sources and the receivers of international standards.

32Yet comparative law is necessary when we witness the development of a supra-State law that we would like to see defined otherwise than by extension of the system of the most powerful State. From this point of view, the title of this Chair is not neutral. Mentioning comparative studies is a way of expressing a preference for a pluralistic internationalization that fully embraces the diversity of systems. But in order to be successful, it would need to involve more than simply their juxtaposition. It is necessary to identify differences and to find a common grammar that allows either compatibility (harmonization) or real fusion (hybridization). Even on a European scale, difficulties arise as trials multiply, from contract law to criminal law, through social or procedural law.

33On a global scale, we can at best attempt to evaluate the differences that determine the chances of a pluralistic internationalization. This is the perspective from which I have been carrying out research over the past ten years, on traditions as old and essential as the Islamic and Chinese traditions – at the risk of losing my way due to inadequate knowledge of the language or history.

34As regards the Chinese tradition, I am particularly indebted to Pierre-Étienne Will for associating me to his seminar on problems of democracy and law in China. This afforded me an opportunity to become more familiar with the particularities of Chinese law, from the point of view both of its progress and its impediments. I discovered, for example, how with censorship, a form of control of excesses of power started to emerge under the Ming dynasty, later weakened under the Qing, and was finally revived in the 1936 constitution plan (adopted in 1947). The plan was inspired by a theory of five powers developed by Sun Vat Sen as a synthesis of the thinking of Montesquieu and the imperial tradition. This theory, which was subsequently implemented in Taiwan but never had any real impact in continental China, at least countered the belief that the West invented everything.

35The comparative method ultimately has the dual function both of contributing to the integration process at the heart of the internationalization of law, and of resisting it. It contributes to integration in so far as comparative law is necessary to overcome divergences by operating a synthesis that, in certain cases and certain conditions, allows the juridical hybridization for which Europe constitutes a sort of laboratory for analysis and sometimes tests. For instance, the project of a European prosecutor was designed by combining elements taken from the tradition of proceedings presided over by an interrogating judge, and from the accusatory tradition. But hybridization is not possible in all domains, and in the same project the idea of making professional judges mandatory was abandoned, in light of English law’s attachment to the jury as a symbol of democracy.

36For comparative studies also lead to resistance, either of a radical nature, in which any form of integration is refused, or more subtly, by excluding unification according to uniform rules but opening the way to harmonization around common principles applied with a national margin of appreciation. By reconciling the constraints of common law with the requirements of diversity, this margin, a sort of right to difference granted to States, might make it possible to combine the singular with the multiple. I say “might”, as the margin, both imprecise and evolving, may well be more conducive to arbitrary court rulings than to the emergence of a common law accepted as such.

37This risk brings me to the second precept, which is both a standpoint and a method: making indeterminacy a component of legal reasoning; in other words, admitting that the road is not known in advance and that internationalization may involve rearrangements for which a certain degree of spatial and temporal indeterminacy would at present be necessary.

38Let me be clear. Saying that indeterminacy is necessary does not mean that I am unconditionally celebrating it, nor advocating law without rigour. On the contrary, for having worked on the logic of degrees known as fuzzy logic, I maintain that indeterminacy is a call for more transparency in motivation and more rigour in method. Indeterminacy is not arbitrariness.

39Indeterminacy comes first from the use of the notion of a national margin of appreciation. The concept was invented by a European judge so as to take into account the diversity, especially of a cultural and religious nature, which exists even in relatively homogeneous regions. It follows that it is even more necessary in a global space that presents all sorts of disparities, to the extent that it is difficult to see how the principle of equality between States can be applied with credibility. Moreover, the method has to be openly acknowledged as such: by definition a “margin” introduces indeterminacy, but preserves the possibility of a common measure of deviation, and hence of a common norm.

40The example of human cloning can help to illustrate its utility. It would be both possible and desirable to place a global ban on reproductive cloning. But the Franco-German proposal foundered at the UN, due to the UN’s failure to take a stand on so-called therapeutic cloning, and because of the wide divergences that precluded judicial unification a priori. To ensure its adoption, the proposal should probably have included a common standard banning, for example, the implantation of cloned cells in vivo, in the name of the principle of human dignity, while allowing each State leeway to define legally accepted practices.

41The effectiveness of such a proposal would however imply both the establishment of judicial control, and the adaptation of methods.

42To prevent arbitrary use of the national margin and to reduce indeterminacy, judges would have to build an argument, and thus apply reasoning, by specifying and weighing up the criteria in relation to the interests at stake. The same condition moreover applies to intrinsic margins, due to the imprecision of certain notions or certain qualifiers, such as “reasonable” or “acceptable”. These adjectives, found in common law, implicitly assume trust in the wisdom of the judges and their self-discipline. But such trust is more willingly granted to national than to international judges, who are seen as foreigners. To convince people of their legitimacy, the latter would be required to show even more rigour than the former. When it comes to defining a margin, it is necessary to establish a scale of degrees. However this is not enough, for measuring the deviation from the norm does not indicate the point from which a delay becomes unreasonable, a risk inacceptable, or the national margin excessive. A threshold that governs the extent of the margin allowed has to be set, although its variations would also create a new risk of arbitrariness, in this instance in time.

43Indeterminacy in time which, understood correctly, determines the use of the precautionary principle, is also found with internationalization, the “evolving” nature of which is sometimes openly asserted. Rigour then demands that the criteria governing variations in the decision-making threshold be indicated: international law criteria, such as the legitimacy of the goal or the nature of the principle, and comparative criteria such as the existence or absence of a “common denominator” between national systems. Judges are working towards this, but they lack the resources to carry out a real comparison. They reserve the right to disregard it should “new conditions” appear, as the European Court of Human Rights put it.

44While comparative studies can thus contribute towards rigour, nothing guarantees that they will entirely remove fuzziness and uncertainty. Incorporating indeterminacy into legal reasoning does not eliminate it; it is, more modestly, an attempt to limit the share of unpredictability – should I say of chance? – in the processes of the internationalization of law.

45I daren’t raise the topic of chance here. Jacques Monod wrote that it referred to very different situations, ranging from the “operational” uncertainty of a throw of dice to the “essential” uncertainty at the intersection of independent causal chains, or even the absence of any causal determinacy. Henri Atlan summed it up as follows: “neither ontological nor oracular, chance remains a last resort”.

46Whether it be operational or essential, relative or absolute, uncertainty leads us to “challenge our desire for truth” – as Michel Foucault invited us to do in his inaugural lecture. “We must”, he said, “restore to discourse its nature of being an event”, including in its discontinuities, and “agree to introduce chance as a category in the production of events”.

47To get to my working hypotheses, after my research subject and method, I would now like to identify some of the discontinuities in legal discourses. Not to ward off their chance appearance, but at least, since law is a prescriptive discourse, to seek new directions that might enable us to open new paths. I can already see three.

48Let us start with the least apparent, perhaps, for non-jurists, yet the most disruptive for the juridical order, the discontinuity of norms. National margins of appreciation, the subsidiarity principle embedded in European treaties (and backed up in the draft constitution by control of the national parliaments), as well as the complementarity principle placed at the top of the International Criminal Court’s statutes, have all had the consequence of interrupting the vertical chain going from national law to international law. The horizontal interruption has however been even more radical between international legal frameworks on the same level, which were believed to be autonomous because they specialized in different domains, for example market law or human rights law. The difficulty is that even if this discontinuity excludes close subordination between different normative groups, it does not imply their absolute autonomy.

49The change of direction would thus be epistemological, for such phenomena are difficult or even impossible to understand through the lens of the traditional conception of a legal order, strictly determined by the principle of a hierarchy underpinning the unity of the system: a system which is thus pyramidal, in which each norm is subordinated to the one above it, right up to the top. In relations between national and international law this representation allows only two possibilities: monism, which implies a global legal order to which all the others are subordinated, or dualism, if the national legal orders remain designed as separate and independent entities. While the former remains utopian, the latter, implying a radical separation between national and international law, does not allow for the integration into legal reasoning of all the phenomena accompanying the internationalization of law.

50For there is not only a change of scale, through the expansion of the national territory to the whole world, and of historical time to future generations; the interactions and indeterminacies characterizing this global law in preparation may perhaps be announcing the emergence of a new model.

51In De la pyramide aux réseaux?, François Ost and Michel van de Kerchove develop the hypothesis of an oscillation between “the potential universality of networks and the firmly localized anchoring of pyramids”, deliberately accepting the risk of a dialectic without synthesis. This risk does indeed exist, for a dialectic of this nature excludes neither the predicted chaos nor regulation by the market alone, which can lead to the totalitarianism of money, as Geneviève de Gaulle, president of ATD Quart-Monde, often pointed out.

52To escape all this disorder, it seems that we need a theory that is both dialectic and synthetic, for the purpose of building an “ordered pluralism” from the plurality of systems. We can attempt this by combining, from the binary to the fuzzy, the different logics governing the processes mentioned above, all representing possible normative figures. Hybridization, implying the merging of national rights into a unified norm, applicable according to a strict hierarchy, does not exclude traditional binary logic; but it remains an exceptional alternative, for it assumes a legislator with the power to define a precise rule, and a competent judge to apply it. With harmonization, limited to laying down common principles in order to make national differences compatible, the hierarchy can be made more flexible by playing on national margins; but it entrusts the judges, the receivers of the norm, with part of its determination, demanding that they learn new logics based on degrees and thresholds. Finally, co-regulation, which tends to avoid the most glaring contradictions, excludes all forms of hierarchy, for each judge is in turn sender and addressee, in an informal game of information exchange and cross-referencing, but one that is said to inspire transparency and reciprocity.

53From informal practices to juridical formalism, the idea is not to eliminate tensions but to create order between these different figures in an evolving and dynamic synthesis, driven precisely by tensions. To that end, it is essential to identify the conditions peculiar to each figure by taking into account the distribution of roles between the legislator and the judge, because this is what governs the organization of powers.

54Yet a second discontinuity affects precisely the organization of powers. Even in Europe, the classical balance between the three powers does not seem directly transposable. Faced with a weak European parliament and an executive divided between the Commission and the States, the judicial power of the two European courts is asserted through a dynamic where the law could end up impeding democracy. This risk of imbalance is stretching across the globe as transnational norms are developed, designed and applied by the actors themselves, or supranational norms, defined by States but progressively controlled by judicial or quasi-judicial bodies. For instance, the WTO can compel States to comply, and international criminal courts can sentence high-ranking officials, including an incumbent head of State.

55But the most significant innovation, invented partially by René Cassin and implemented in France by Robert Badinter, is still limited to the regional, notably European, Courts of Human Rights. This is the mechanism in which a private individual can lodge a complaint as an active subject of international law, and may thus win their case against a State. In 1986, the European Court of Human Rights for instance sentenced France for the first time, when a foreigner who had been tried for murder in his own country laid charges against the French State for illegally detaining him. Albeit regional, this type of case can have global repercussions. In several criminal cases where extradition was requested for a capital crime, the Strasbourg Court, deeming the death sentence to be contradictory to European human rights laws, ruled that the States concerned were to refuse extradition to the USA mainly, and more recently to China.

56Any balance of power is thus challenged. To find a new balance, it seems difficult to transpose the federal or confederal model between highly structured States. We see this even in Europe where everyone shares the same democratic ideal, and a fortiori in the global context of States at very different stages on the road to that ideal. As for the imperial model, it always implies subordination of a dominated periphery to a dominant centre, with no guarantee against the appalling despotism dreaded by Kant, who considered the plurality of nation States as the unsurpassable horizon of cosmopolitanism.

57As neither international law nor comparative constitutional law nor history provides a precedent, we are witnessing a new fork in the road, political this time. And the example of European construction should already enable us to clear some new paths, or to give up others that have proven to be dead ends. The reform of institutions demands the invention of a new type of articulation between the national and supranational levels, in the exercise of executive as well as legislative power. The Convention for the Future of Europe proposes rules to delimit exclusive and shared competences more satisfactorily.

58But democracy is not limited to institutions, and the members of the Convention were right to engage in dialogue with representatives of civil society. They should perhaps read Lucien Febvre’s lecture “Brûler ou manquer l’étape” (Skip or miss the step) which recalls the failure of Europe’s “brand new” democratic institutions in the 1920s: “masterpieces of jurists, triumphs of professors of constitutional law, the best of their kind”; yet masterpieces immediately “broken by the big hands” of those to whom they had been entrusted.

59Building new institutions is meaningful only if the feeling of belonging to the same community develops simultaneously. In this respect, cultural, scientific and economic ties are probably as important as legal ties, if not more so. Being untimely also means remembering that in a Europe torn apart by wars of religion, humanist thinking in the years following the creation of the Collège Royal revived the ideal of a peaceful society. Marc Fumaroli has reminded us how, throughout Europe, the ancient myth of Astraea was to symbolize the hope of a return to peace and justice; as if “better to signify its farewell to war”.

60From European citizen to citizen of the world, civil society movements, increasingly present on the international scene, may be characterizing another period of humanism. References to mythology have disappeared and the dream of a return to nature has taken other forms, but the desire to ward off “the spirit of anger, discord and bloodshed” remains strong. Despite their blunders and their excesses, these movements have evolved. First called anti-, then alter-globalization, they have recently been taking on the form of peace demonstrations, thus reflecting the awareness of a common destiny on all continents.

61We can see herein the nascent hope of a shift towards global democracy that remains to be invented and would bring together all the actors – government, civil and economic – in a new “civic triangle”. But it will not preclude the need for progress to be made in democracy at national level.

62It is thus from a triple – national, European and global – perspective that I will consider the hypothesis of a “radical reform of powers”, without which the internationalization of law would become synonymous with impotence. The result would threaten political equilibrium and deepen the “democratic disappointment” mentioned by Pierre Rosanvallon in this very institution.

63The de facto interdependencies characterizing globalization today require “governance” methods to be made more legible by a revival of the concept of community. By this I mean neither the romanticism of the community of law that inspired the German historical school in the nineteenth century, nor the myth of the “international community” that René-Jean Dupuy showed was usually harnessed for the benefit of groups of States, but a “community of States” made of shared sovereignty and responsibilities, articulating powers between the various levels of representation, guaranteeing the quality of its judges, and integrating new forms of citizen participation.

64But this type of community can exist only if the recognition of common values contributes towards determining (over-determining) the meaning of the applicable norms. In other words, it postulates a universalism of values that the persistent relativism of facts contradicts daily.

65This brings me to the third discontinuity, that of values. Actually, it has been a long time since relativism was first embedded at the heart of legal systems, and then consecrated by the principle of equal sovereignty of States; and that universalism separated from reason founded a natural law, then a law of nations, in their various senses, from Greek philosophy to the Enlightenment thinkers. Between normative relativism and philosophical universalism, we settled for a discontinuity that preserved legal autonomy and political sovereignty.

66In the wake of the Second World War, the United Nations Charter also laid down rules with universal purview in an attempt to channel the use of force. But, as Antonio Cassese has shown, as an extension of the UNESCO programme these rules were essentially limited (with varying degrees of success) to “negative peace”, that is, the absence of war. Designed neither to reduce economic and financial imbalances nor to ease ethnic and religious conflicts, the Charter failed to give the UN the means to build “positive peace”. The separation is now becoming untenable, less for ideological reasons than because of the course of events. In step with the globalization of exchanges of an economic, financial, cultural and scientific nature, crime, from terrorism to corruption and large-scale illicit trade, is likewise taking on global proportions, as are risks, both ecological and biotechnological. It is becoming clear that the answers can no longer be limited to national law alone.

67In other words, we now know that we risk losing peace, and that peace cannot be divided. Whether positive or negative, it has to stem from a community of States. Interdependence has become a reality and calls for a common project.

68Far from disqualifying the UN, the present crisis could eventually give it the goal of building the international order that Article 28 of the Universal Declaration of Human Rights recognizes as the fundamental right of every human being. The risk right now is however an exacerbation of the hegemonic temptations of the most powerful country, along with the nationalist reactions of the others.

69The most probable scenario is thus the strengthening of an already noted discontinuity acting conversely. As universalism becomes normative, we are witnessing the development of a new, abstract and theoretical relativism whereby the internationalization of law is opposed with quasi-theological arguments.

70It is this reversal that I would like to study from this year onwards. I intend to compare the limits of relativism, faced with the globalization of flows, risks and crimes, on the one hand, with the weaknesses of universalism underpinning the notion of “human” rights and crimes “against humanity” in particular, on the other.

71Two years ago, at the closing lecture of the Blaise Pascal Chair on international criminal justice, Anne Fagot-Largeault agreed to illuminate our legal work by asking the question “On what should juridical universalism be founded?” From the outset she clearly stated that wanting to take what was good in each set of morals or in each legal system seemed to her “dreadful”, literally a “philosophical heresy”, the incoherence of which she explained. I dare to hope that she will have forgiven the heresy of a syncretism which, after all, she did admit could be attempted, starting precisely with penal law. As she pointed out, “we identify more clearly that which shocks our moral conscience than that which pleases it”. It is true that I had an ally in the house, as Jean-Pierre Changeux then spoke of an ethical universalism designed as “a further step towards the expression of a humanitas peculiar to homo sapiens, which could mask differences in social, national or religious conventions”. He further added that the existence of a variability linked to cultural pluralism could “contribute in some way to generating diversity which will serve to conceive of the acceptable norm”.

72Once again, the most recent fork in the road requires us to use our imagination, philosophically here. The aim may seem excessive, but the stakes involved justify it. Without agreement on a “common symbolism” enabling us to establish, if not a single system of values, then at least some common, legally secured prohibitions, the consequences are inevitable: after disorder and impotence, comes war.

73In these times of dissension, the appeal to the imaginative forces of law is probably more necessary than ever, and I remind myself of Bachelard’s urging us to: “find in being both the primitive and the eternal”. Doing so would require not only legal work but also, at the interface of processes of hominization and humanization, interdisciplinary work that conversations with you, my dear colleagues, have had me dreaming about. I would like to revert to this, if time allows, during these few years of teaching which, in this new Iron Age, I wish to place from the outset under the sign of Astraea’s return.

© Collège de France, 2015

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