1Note portant sur l'auteur1

2The Internet is a disruptive force in its relationship with various legal systems. As the Internet deployment goes beyond the scope of the current legal frameworks, States endeavour to “reterritorialize” it; value systems are intermingled; the axes of formal validity are distorted. This situation is chiefly attributable to the fact that law is becoming interactive (via exchanges of norms) and evolving (due to technological progress).

3As a result, the Internet must be interpreted as revelatory of globalisation. At the same time, it is an instrument that makes law more complex (as the debate between sovereignism and universalism is made impossible), its comprehensiveness is altered (as actual situations become unpredictable from a legal standpoint) and its coherency is fragmented (owing to the competing norms transmitted by the Internet).

THE INTERNET AND LEGAL SYSTEMS

4I would like to share a few thoughts on the relationship between the Internet and legal systems. This will also bring us back to the colloquium’s main theme: ‘Internet Governance and the Dynamics of Commons: “The Issue of Access”’. However, I would propose a slight change in terminology, in order to speak about “the interactive and evolving trend between common good and governance”. I view this relationship between the Internet and legal systems in three ways.

5Firstly, I will say that the Internet is disruptive for legal systems, as it challenges the three axes of legal validity, namely empirical validity and the effectiveness and efficiency of norms. The Internet goes beyond the bounds of the law, operating both in a virtual space and in real time. States are completely overwhelmed by this shift, and are unable to cope with the problem. But at the same time, we see that states have not entirely withdrawn from this field: a process of reterritorialization is under way, and this raises issues for jurists, as the Internet is not a “territory” in the traditional legal sense.

6The second axis is one of values. Its validity is axiological; here again, the Internet is disruptive insofar as it is a source of value conflicts – conflict between human rights and property rights, between human rights and competition rights. Also, within the category of human rights, security and freedom are conflicting.

7A few years ago, Harvard professor Charles Fried [Fried, 2000] published a fairly virulent review of Lawrence Lessig’s book Code and Other Laws of Cyberspace [Lessig, 1999], entitled “Perfect Freedom or Perfect Control?”. With the “war against terror”, we realise that the Internet has also become an instrument for control and surveillance. At present, there is ambivalence in France regarding this subject: around 50,000 cases of court-ordered surveillance are linked to the Internet every year. In the US, the authorities can implement surveillance via the Internet without a warrant. Thus, in the field of conflicts and values, the Internet also disrupts the legal system.

8The final axis is of greater interest to jurists than to non-jurists. I will use the term “formal validity”. Indeed, legal systems traditionally operate in a hierarchical and stable fashion. Legal certainty, hence the predictability of a norm, is linked to this type of operating mode.

9At the same time, in reality, Internet law shows that the law is becoming interactive, with exchanges between national norms. The Yahoo! affair2 is an example of such exchanges on the national, regional, European, US and global levels. Law is also evolving. I remember a meeting where members of the French Constitutional Council, which had issued a decision on digital law just before the HADOPI Law was passed, said: “We worked a lot on this decision, but when we issued it, the technologies had already evolved, and the decision no longer had a practical application, but had become purely theoretical”. Therefore, even though law is interactive and evolving, it is unable to keep pace with technical changes. However, this disruption is perhaps not a specificity of the Internet.

ORDER AND PLURALISM IN THE AGE OF GLOBALISATION

10This line of thought prompts a second remark: we tend to overestimate the Internet’s specificity from a legal standpoint, as these are all problems of globalisation in general, the internationalisation of law and the globalisation of law. Moreover, the reasoning is valid not just in the legal field: it is also applicable in the fields of politics (the issues of power) and the economy (inequalities linked to the logic of the market economy).

11All these issues are thus not unique to the Internet, and this leads me to say that instead of seeing the Internet as a disruptive force, it should perhaps be viewed as a revealing force, i.e. as a sort of mirror of globalisation. This mirror raises the question that Jean-Michel Cornu elegantly refers to as “the tragedy of the three C’s”3. This tragedy lies at the heart of globalisation, including for jurists. Complexity, which is the tragedy’s starting-point, is inevitable, in my view, insofar as the legal rules being implemented no longer fall into the traditional legal order. As mentioned above, the new order is not hierarchical or stable, but interactive and evolving. The debate between sovereignism and universalism is outmoded. Classic sovereignism does not answer cross-border questions such as those raised by the Internet, climate change, or many other issues. It is clear that universalism, aimed at uniformity, is also entirely inadequate. Universalism that intends to impose identical norms for the entire world does not function on a European level, much less on a global one. For this reason, I would use the term “orderly pluralism” [Delmas-Marty, 2006], combining two terms that are contradictory from a jurist’s perspective, as “a plurality of orders” also implies “disorder” or “chaos”.

12To reach a minimal level of harmony on an international, regional or global level, we must accept both a certain pluralism and a certain order. The two must be combined. We thus enter much more complex legal systems. Yet legal thought is unprepared for complexity. Therefore, jurists must implement a sort of “cultural revolution”. This is where we run into the tragedy: once complexity becomes necessary for pluralism, if we wish to avoid a hegemonic world order and the juxtaposition of levels of sovereignism, we must make use of pluralism and therefore complexity, which brings us back to the tragedy, i.e. a lack of comprehensiveness and coherence. The tragedy is that the “three C’s” can never function together. If complexity is increased, comprehensiveness is decreased, whereas comprehensiveness is, in the eyes of jurists, linked to the implementation and predictability of a norm. Losing predictability, which defines comprehensiveness for the jurist, means losing coherence: the more complex the system, the more the values it conveys are heterogeneous.

13In terms of comprehensiveness, we also lose out because of a problem that jurists seldom consider but which seems very important, in my view: the question of speed. The speed, or pace, of integration is very different depending on the local context. Even within a single context, the pace of evolution may vary and, as I already mentioned, technology evolves much more rapidly than the law. Due to these varying speeds, we witness the development of asynchronous and dys-synchronous phenomena. The Internet is perhaps one of the best catalysts for revealing these phenomena. I have mentioned other examples, such as climate change, but I think that the Internet best reflects globalisation from the perspective of this obligation to consider “the three C’s” beyond the tragedy.

14The goal of Internet governance would thus be to endeavour to correct this tragedy by identifying how the Internet is a source of renewal for regulations and for the way that regulations are represented. In this respect, the Internet not only disrupts and reveals, but also regulates. To break free of the vicious circle of the “tragedy of the three C’s”, maybe we must reverse the order, and move from common good to governance. It would appear that, in order to trigger a virtuous dynamic, we cannot refer to the metaphor of the “bazaar” or to that of the “cathedral”4. A dynamic is not something that is fixed or static, but rather a transformation process. Whenever fundamental rights are mentioned, “human rights” are viewed as the foundation for value. In reality, this is much more a transformation process for legal systems than an actual foundation. Therefore, again, I prefer to speak of a transformation process rather than a foundation.

TRANSFORMATION PROCESS SYNERGIES VERSUS THE “TRAGEDY OF THE THREE C’s”

15To return to the question “where are the virtuous dynamics?”, there are three conditions that fit with our concerns. We can cite the need to reduce incoherence and to tackle a lack of comprehensiveness; and these two conditions give rise to a third one: the need for control, and thus for a new form of governance. Reducing incoherence means emphasizing values; but, as mentioned earlier, we cannot adopt a uniform universalism of values that would be suspected of “dressing up” imperialism, with Western values being imposed on the entire world. It is therefore desirable to move towards a new humanism, or rather, towards a humanisation process: I prefer the latter expression, which entails a synergy between fundamental rights. For example, the French Constitutional Council debated the HADOPI Law not in terms of a fundamental right to Internet access, but in terms of access as a means for applying the fundamental right of free expression and communication. Fundamental rights, but also the right to privacy and most of the basic rights in the Universal Declaration of Human Rights or UN agreements, are at the heart of the “humanisation” of the Internet.

16This process will not be sufficient, due to the lack of an adequately developed global mechanism for controlling the respect of fundamental rights. Therefore, a synergy must be created with transformation processes other than fundamental rights, i.e. with the famous “global public good”. Basically, we are attempting – and I believe it is not an impossible goal – to create a synergy between the rationale of the global public good, which is based on the market economy and therefore perhaps more effective, and the idealist rationale of human rights and fundamental rights. A synergy must be found in order to reduce the incoherence, and this involves intersecting fundamental rights and global common goods. This is not a path for removing incoherence, but for diminishing it. The objective is not to reach common rules for defining values and imposing them indiscriminately on the entire world, but instead having common principles that, with a certain leeway for interpretation (on a national level), would set in motion something resembling “harmony” on a global scale.

17This mission appears challenging if we work only in the field of fundamental rights, even if the scope is broadened to global common goods. It is desirable to tackle the lack of comprehensiveness while striving to improve (here, we are in the realm of formalism) predictability, despite complexity. What is needed is a new kind of formalism, hence the concept of an “imaginative form of law” to imagine new principles, new techniques and new models. Taking into account that the sovereignist and universalist models are both outmoded and inapplicable, a pluralist model must be invented, founded on techniques of creating norms that are not purely hierarchical.

18The technique of allowing for a degree of interpretation at the national level, which enables a shared principle to be applied with leeway for each state, is already used in Europe with the European Court of Human Rights5, which is a good example. A polychronous system could also be developed, i.e. a normative space that functions at various speeds. Here again, Europe has experimented with this via the Schengen Area or the Euro Zone. This is also being attempted on a global scale, with the Kyoto Protocol to tackle climate change. New principles such as subsidiarity, which enables the local, national and global levels to be interconnected, must also be developed.

THE NEED FOR CONTROL, A CATALYST FOR DESIGNING A NEW KIND OF GOVERNANCE

19The global level only intervenes when the other levels prove ineffective. Here again, this fact is currently being experienced in European law making. This work of imagining a new legal system must also involve inventing a new formalism more suited to the actual world than current legal rationales. A few years ago, I wrote a book on the rather provocative topic of “vagueness in the law” [Delmas-Marty, 2004], in which I did not assert that vagueness is antithetical to law, but rather that law could be made with a strict formalism using vague concepts as a starting-point, based on methods of vague categories. Indeed, a legal reasoning can be built using imprecise norms, with a rational of gradation and a requirement of compatibility that is not necessarily conformity. Thus, the reasoning changes, more complex thresholds for compatibility become necessary, which enables the lack of comprehensiveness to be tackled and predictability to be strengthened.

20Basically, reducing incoherence strengthens legitimacy, and tackling the lack of comprehensiveness bolsters predictability. However, these two methods of correcting the “tragedy of the three C’s” will only work if there is control. If we concede leeway for interpretation on a national level, without a system of control, states will transform this leeway into absolute sovereignty. The same logic applies for the lack of comprehensiveness and new formalism. Therefore, there is a need for control that requires a third renewal effort, which brings us back to governance. If we wish to move towards an “Internet commons”, i.e. by going beyond the concepts of fundamental rights and global public goods towards something in the common order, this must involve a new form of governance.

21This new governance would articulate the roles of the various players: public-sector players, which have not entirely withdrawn from this issue; private-sector players (but here, the “hotchpotch” concept of civil society must be avoided, as the interests of economic agents do not coincide with those of civic or scientific stakeholders). The role of experts is absolutely vital in this type of field. Work must be done on the roles held by the various players and on the different regulatory modes, which will undoubtedly have to combine self-regulation, co-regulation, and inter-regulation, and include future supra-regulation in order to ensure a minimum common ground. This reconfiguration is combined with options for placing this common ground in context so that it does not diminish the cultural wealth of humanity, namely, its diversity. Thanks to technology and because we must find answers suited to the increasingly complex real world, the Internet offers an extraordinary opportunity to think of a way to eliminate the “tragedy of the three C’s”, or at least make it a less pressing and oppressive issue.

CONCLUSION

22To set up a virtuous dynamic for Internet regulation and invent new transformation processes for the law, several paths can be opened up:

• Reducing the law’s incoherence while avoiding universalism and finding synergies between fundamental human rights and global public goods;
• Tackling the lack of comprehensiveness of the law by improving its predictability, which requires a new formalism, new techniques and new legal models (e.g. by distinguishing between local and global extensions for the application of rules);
• Inventing a means to control the law, along with new governance modes needed for the large number of players involved and norms generated, between regulation and supra-regulation. This would come down to imagining the conditions for “common ground” that applies both universally and locally.