Monday, January 11, 2010

Coping with legal pluralism: French & American approaches to the transnational legal world

(Part 1 of a 3-part guest post by Mireille Delmas-Marty)

From the viewpoint of tradition in France, or any continental European state, the term "legal pluralism" seems to be a kind of monster -- a chimera, if you will. That is because the 2 words that make up the term usually carry opposite meanings:
► "Pluralism" implies differences, dispersion, and free movement, interaction and evolution; in contrast,
► "Legal" leads us to think in terms of a unified, hierarchical, static structure.
But the world is not static, and so we must take up the challenge of overcoming this contradiction. We must change our minds just as our legal history changed. It changed at the end of World War II, when a European legal order emerged, and then again since the end of Cold War, when the so-called globalisation of law accelerated. Changes occurred in, to name a few areas:
► Human rights law with the adoption of the Universal Declaration of Human Rights and subsequent instruments;
► Trade law with the establishment of the World Trade Organisation;
► Environmental law with the 1997 Kyoto Protocol and perhaps the Copenhagen process; and
► Criminal law with the International Criminal Court.
The emergence of the European legal conception has deep influence, one that perhaps makes it easier for the French to accept and join this transnational legal world.
On initial comparison, similarities between the legal system of Europe and the federal system of the United States jump to the fore. The distribution of powers between European member states and the community is as sensitive as in any federal system. Power is transferred to the community whenever member states in Europe are unable to comply with community objectives. That practice -- an implementation of the principle of subsidiarity -- is paired with that of proportionality. This latter norm is stated in Article 5 of the Lisbon Treaty as follows:
"[T]he content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."
The effect of proportionality on European integration is like that of a dimmer switch on a lamp: integration is increased when member states do not attain European Union objectives, and decreased when they do.
Despite those similarities, the differences between the European and the U.S. systems are critical.
They differ, for example, in history.
For centuries, Europe was constructed as separate states, independent in politics, language, and legal system, while America was founded as a federal republic with a national as well as state governments.
The 2 systems differ as well in contemporary practice.
Although we tend to think of the United States as more unified, in some areas this is not the case. With respect to the death penalty, for example, unification appears more complete in Europe, pluralism more present in the United States. But in most areas, it’s the other way around: pluralism appears much more complex in Europe, where the system is both bipolar and multipolar:
► Bipolarity is symbolised by the coexistence of 2 European supreme courts. For the Council of Europe, comprising 47 states including Russia and Turkey, there is the European Court of Human Rights in Strasbourg. For the subset of 27 states that make up the European Union, there is also the European Court of Justice in Luxembourg. By tradition the latter focuses on the market, the former on human rights.
► Multipolarity is preserved in each of these bipolar regimes, by different legal techniques. In the Strasbourg system there is, of course, the doctrine of margin of appreciation. In the Luxembourg system, member states may opt out of certain aspects of European legal integration. Thus the December 2009 entry into force of the Charter of Fundamental Rights of the European Union (prior IntLawGrrls post) may not apply in Britain, Poland, or the Czech Republic, each of which has obtained the ability to opt out of that instrument.
It may seem difficult to accept such a wide range of pluralism within a federal system.
That is why, in my opinion, the European legal order is situated halfway between reproducing a federal legal system and anticipating a global legal world. Such a global legal world should constitute neither the complete fusion nor the complete separation of diverse legal systems. It should, rather, constitute what I call "ordering pluralism." Thus the title of my new book: Ordering Pluralism (2009) (prior IntLawGrrls post).
I use "ordering," rather than "ordered," pluralism in order to stress the movement rather than the model, the process rather than the result.
From the vantage point of ordering pluralism, I would say that the questions asked in the French and American approaches to law are the same:
► How does transnational law develop? Is it a law among nations? A law beyond single nations?
► Where does transnational law develop? At which level? National? Regional? Global?
► When does transnational law develop?
At this point in time, the answers each approach gives are somewhat different. Yet one can expect that over time they may converge.

(Still to come in this 3-part guest post: Part 2, on how transnational law develops, and Part 3, on where and when it develops)

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