Thursday, June 9, 2011

10 to know

(Delighted to welcome back alumna Mireille Delmas-Marty, who in this guest post draws upon her article “10 x 10,” 8 International Journal of Constitutional Law (2010), on which IntLawGrrl Naomi Norberg provided translation and editorial assistance)

My scholarship has been 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, by transforming the legal order’s hierarchical, static representation into an interactive, evolutionary one, and by announcing a new humanism, introducing human rights into the legal field.
To accomplish the impossible task that the International Journal of Constitutional Law set for me – “select the 10 most important works which have shaped my intellectual persona” I chose works that aided my research in 3 areas:
► Foreseeability: legal techniques and logics affecting legal formalism
► Legitimacy: ethical values concerning legal humanism
► Effectiveness: actors and powers involved in global governance

1. Raymond Saleilles, École historique et droit naturel
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 suggested increasing objectivity by using legislative analogy, collective legal conscience, and, above all, comparative law. In his view, the “common law” of humanity “contains the principle of universality”– one that has “variable contents” and preserves the concrete applications of “each country’s case law.” Saleilles thus imagined the technique of the “national margin of appreciation” – a key to renewing legal formalism – more than 50 years before the European Court of Human Rights did.

2. Henri Atlan, Les niveaux de l’éthique
To understand how the margin of appreciation can organize pluralism – replacing strictly hierarchical, stable relations with forms that are interactive and evolutive – one must give up binary logic. Imprecision does not preclude rigorous legal reasoning; the use of gradation logics may limit the unforeseeability and judicial arbitrariness of norms.
At the international level, however, consensus on a few major principles does not guarantee agreement on their application. Misunderstandings must be made apparent, and conflicts clarified through “judicial dialogue” and the search for what John Rawls, in Political Liberalism (1993), called “overlapping consensus.”
To consider conflicts that seem irresolvable – corporal punishment and gender-discriminatory practices, for instance – I turned to Atlan’s work on complex systems and bioethics, at the:
► Universal level of pleasure and pain that inspires moral indignation – sometimes effective but easily manipulated.
► Institutional level – though national laws render it foreseeable, it is marked by relativism’s promotion of different.
► Metaethical (or metalegal) level – a universal nature that has yet to be built.
Together, the 3 levels make a path to hybridization.

3. Antonio Cassese, Dissent in Erdemović (ICTY 1997)
Since the first ad hoc tribunals were created, international criminal justice has become a laboratory for observing hybridization. Judges from different traditions blazed a trail the International Criminal Court now follows. International Criminal Tribunal for the former Yugoslavia President Cassese (prior IntLawGrrls posts) did the work of a pioneer. Believing international law no longer follows the traditional, interstate Grotian model but, rather, a suprastate model evocative of Kant’s cosmopolitan vision, he 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 in his Erdemović dissent, international criminal procedures are the result of “the gradual decanting of national criminal concepts and rules into the international receptacle,” not of a corpus of uniform law. Because they “combine and fuse” accusatorial and inquisitorial approaches, “mechanical importation” of concepts from one nation’s law “may alter or distort the specificity of these proceedings” (italics mine). This defines the hybridization process necessary to avoid hegemonic universalism.

4. Hannah Arendt, Condition de l’homme moderne (The Human Condition)
Criticizing Marx’s use of the concept of labor, Arendt distinguishes among Labor, Work, and Action. 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,” we understand that human rights are not natural but rather a protest against nature.
Thus they participate in “humanization,” the ethical evolution process that makes the human species more humane. Human rights law’s fragility, witnessed daily, calls into doubt these rights’ usual presentation as “founding” concepts or “fundamental” rights. Seen as “processes” for transforming legal systems, however, these rights have “extraordinary resiliency.” To be enforceable everywhere, they must be recognized by all cultures. As underscored by Arendt, an IntLawGrrls foremother (prior posts), humanity is pluralistic:
‘No man can be sovereign because not one man, but men, inhabit the earth.’


5. Onuma Yasuaki, “Towards an Intercivilizational Approach to Human Rights”
Human rights universalism was called into question at the 1993 Vienna Conference, namely by the Bangkok Declaration. And despite the active participation, described by Mary Ann Glendon in A World Made New (2001), of persons like the Chinese diplomat Chang Pengchun, the “Universal” Declaration was derived exclusively from Western texts.
Universalism must not be confused with universalization. In this article, Onuma 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 that an “inter-,” then “trans-” civilizational approach more likely will contribute to the evolution of human rights, because “the strength of the idea of human rights lies in their universalizing power.” He underscores that national cultures“change over time,” and questions “a narrow, liberty-centric notion of human rights.”

6. Paul Ricoeur, Le juste, I & II
In my search for a metalegal level, meeting Ricoeur – as part of a small group defending the sans papiers, immigrant working families facing deportation – was decisive with their families. Our group’s situation resembled what Ricoeur described 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.” We were caught in what he calls “the tragedy of action.”
The conflict of cultures may be called the tragedy of reason. When reason’s supposed universalism escapes us, dialogue is insufficient. In La Nature et la Règle (2005), Ricoeur proposed a “paradigm” of translation, which reconciles “Universalism and the Historical.” He used the image of a sphere: “at the surface the distance is huge, but if I dig deeper, I move closer to the other who is following the same path” This digging deeper is probably also a condition for democratic global governance.

7. Jürgen Habermas, Après l’état-nation, une nouvelle constellation politique
Habermas’ work was the first to highlight the specificity of the “postnational 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 a “cosmopolitan democracy” proper to nonstate forms of organization.
Such governance precludes exclusion; it cannot be based on a common enemy or a shared past. Despite the threat posed by terrorism after 9/11, Habermas’ earlier observation in La Paix perpétuelle: le bicentenaire d’une idée kantienne (1996) 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.” We have to transform this involuntary community into a voluntary one, take charge of our common destiny, and imagine not only new tools for global governance, but also new duties, such as the protection of future generations.

8. Stephen Breyer, Pour une démocratie active (Active Liberty)
International courts have proliferated while national judges have become bolder. Even the United States has discovered interdependence. U.S. Supreme Court Justice Breyer (prior posts) embodies an open approach, welcoming references to foreign legal decisions. Yet some have criticized such references, and some members of Congress have introduced bills prohibiting them. Paradoxically, this controversy demonstrates the importance of the community of judges emerging through transnational dialogue.
But judicial dialogue alone is insufficient, where international law is concerned. Dissenting in Medellín v. Texas (2008), Breyer considered that a U.S. treaty obligation to comply with a judgment of the International Court of Justice was enforceable without further congressional action. He wrote that “the majority . . . looks for the wrong thing . . . using the wrong standard . . . in the wrong place . . . it takes a wrong turn,” and concluded that “in a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.”

9. 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 limited neither to the 21st C. nor to the Western world. Its unknown explains how, at the beginning of the 20th C., Sun Yat-sen crossing ancient China’s “constitution” with the Western model to develop a theory of “five powers.” Believing the simultaneously legislative, executive, and judicial powers of the sovereign in China “represented an absolute monarchy, an impossible tyrannical political power in the age of democracy,” Sun wanted to reform this branch while keeping, “as the best elements of ancient institutions,” China’s other 2 branches, the examination and the censorate. This hybridization 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.

10. Édouard Glissant, La cohée du Lamentin
In this work Glissant seeks, as a counterpoint to savage globalization,“supportive diversity.” This is precisely what I seek through “ordering pluralism,” the subject of my prior IntLawGrrls series.
Glissant, who died earlier this year at age 82, urged us to “act in one’s place” while learning to “think with the world.” Legal systems must also learn to “think with the world”: state-identified law cannot respond alone to globalized flows and global risks.
Judicial dialogue is an essential process of coordination, Glissant shows, because “changing by exchanging without losing or denaturing oneself” is to “enlarge our imaginations.” (An excellent response to Justice Antonin Scalia in his debate with Justice Breyer.) Similarly, models developed by crossing accusatorial and inquisitorial procedures, or Western and Chinese powers, could enrich the hybrid with unforeseeable results – “common places” bearing new meanings.
Legal changes could take inspiration from what Glissant calls “tremorous thought”– “the assurance that it is possible to approach such chaos, to last and grow in this unforeseeable”– the only way, perhaps, to transform great legal disorder into a pluralist global order.


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