Where and when transnational law develops

(Part 3 of a 3-part series of guest posts by Mireille Delmas-Marty)

Having traced the development in France and the United States of transnational law processes such as cross-referencing, harmonization, and hybridisation, we now examine the questions of where and when transnational law develops.

Location of transnational Law
In the United States, much of the development of transnational law seems to be found at the national level, given the significance of the roles played recently by the Supreme Court regarding cross-referencing and, to a lesser extent, harmonisation.
In France, the national level also remains important. But the international regional level also is very much in play. National judges are becoming international judges, in the sense that they may, and must, exclude national law when it is contrary to European law. European statutes and case law increasingly are incorporated into domestic law. Just as Americans say,

"International law is part of our law,"

recalling the statement in Paquete Habana (1900), we in France say,

"European law is part of our law."

The global level, finally, is the right answer in some areas. This may be seen in, for example:
► Criminal law, in which international conventions have initiated global movements toward change. There may be no European prosecutor -- an innovation that I advocated in my work on Europe’s Corpus Juris project -- but there is already a global prosecutor, in office at the International Criminal Court.
► Environmental law, in which the 1997 adoption at the global level of the Kyoto Protocol, which set targets for regulating greenhouse gases has spurred legal reforms in France and other states and at the European regional level.

Timing of transnational law
The proliferation of international conventions designed to bring about change in the transnational legal world provokes scrutiny of the final question of when -- at what pace -- transnational law develops.
It seems unrealistic to demand implementation of international conventions at the same time in every place. It is thus not surprising to discover the emergence of legal practices allowing states to incorporate various norms of international law at their own pace. This multiple-speed mechanism of implementation -- which I have labeled "polychrony" in my book Ordering Pluralism (trans. Naomi Norberg 2009) -- may contribute to the ordering of legal pluralism. That is because it enables the integration process to continue without the slowest wagon dictating the speed of the convoy, as former German Chancellor Helmut Kohl once put it.
Examples of polychrony:
► At the European level, some states welcome passport-free circulation within the multinational borders of what’s known as the Schengen area, while other states lag behind, maintaining strict controls at their own national borders.
► At the global level, Article 3(1) of the 1992 U.N. Framework Convention on Climate Change articulates a principle of "common but differentiated responsibilities" that establishes different time tracks for reduction of greenhouse gases. The same method was suggested as a way for the World Trade Organisation to allow developing countries to make commitments according to their means and abilities, rather than to exclude them from multinational discussion for the reason that they cannot integrate at the most rapid speed.
In effect, embrace of polychrony transforms a strategy of accepting derogation from multistate legal norms into one of anticipating conformity to those norms. Risks remain, however: integration by the mechanisms of transnational law may result in the disintegration of national and international laws.

Conclusion
Scrutiny of legal pluralism in the transnational legal world reveals not a well established global legal order, but rather interactions between national and international systems that play out in apparently contradictory, nonlinear, disorderly movements. It is a world in which new processes, extremely complex, continue to evolve. Legal systems seem to change form almost as soon as they take shape, long before we have had the time to determine their outlines.
This contemporary reality departs from the hierarchical pyramid-of-law metaphor advanced decades ago by the jurist Hans Kelsen. I suggest that we replace the image of the static pyramid for that of dynamic clouds. The cloud metaphor aptly represents the continuity of formation and deformation ongoing in Europe. It applies too at the global level, where individual experience and interests represent fragments of an ever-changing sky.
Let us dream of the day when a common core of values might in a single breath order our marvelous clouds without forcing them to stay in a single space.

(Part 1 of this 3-part guest post, which introduced comparison of the French and U.S. approaches to the transnational legal world, is here; Part 2, on how transnational law develops, is here.)

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Guest Blogger: Mireille Delmas-Marty

It’s IntLawGrrls’ immense honor to welcome Dr. Mireille Delmas-Marty (right) as a guest blogger.
Mireille is a Professor at the Collège de France, a Paris institution of higher education founded in the 1500s. Holder of the Chair of Comparative Legal Studies and Internationalization of Law at the Collège, she publishes frequently in that subject area and also directs 3 scholarly networks on the internationalization of law: the French-Chinese, the French-Brazilian, and the French-American (participants have included 4 contributors to IntLawGrrls, Hélène Ruiz Fabri, Vivian Grosswald Curran, Naomi Norberg, and me).
I’ve had the honor of calling Mireille collègue since University of Vienna Law Professor Frank Höpfel, with whom I'd corresponded while researching global developments in criminal procedure for my Harmonic Convergence? article, kindly pointed me to her work. Then a Professor of Law at Université de Paris (Panthéon-Sorbonne), Mireille also was coordinating Corpus Juris, a project aimed at establishing for the European Union a penal code that bridged common law and civil law systems. At the same time, she’s written widely on international criminal law, and on transnational and international developments in other areas of law, among them trade and the environment.
In 1969 Mireille earned her Ph.D. in criminal law from Paris 1, whose law faculty she joined after teaching at Lille and Paris XI. Throughout her career, as detailed in her c.v., she’s been active in many organizations and earned many honors. Among them are honorary doctorates from the universities of Liège, Urbino, Uppsala, Beijing, Louvain, Montreal, and Ferrara. She’s served as a Visiting Professor of Law at universities throughout the world, as Vice President of the International Association of Penal Law, as Editor in Chief and then Director of the Revue de science criminelle et de droit pénal comparé, as a board member of the Journal of International Criminal Justice, and as a legal expert on many committees by appointment of the French government and European entities. Mireille is an Officer in France’s Légion d’Honneur and a Commander in the French National Order of Merit.
Our colleague William A. Schabas, Director of the Irish Centre for Human Rights, gave this succinct yet apt description of Mireille:

She is one of the great thinkers of our time on issues concerning law and society.

As a guest blogger, Mireille contributes a 3-part series -- the 1st post is below -- comparing U.S. and French approaches to the evolving world of transnational law. It outlines ideas that Mireille sets forth in detail in her most recent book, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (2009) (prior post), translated into English by IntLawGrrl Naomi Norberg.
For reasons she sets forth in a bilingual guest post further below, Mireille's chosen to honor the abstract painter Maria Helena Vieira da Silva, who joins other foremothers in IntLawGrrls' list just below the "visiting from..." map at right.

Heartfelt welcome!

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)

Honoring Maria Helena Vieira da Silva

(Guest blogger Mireille Delmas-Marty explains, in English and in French, why she has named Maria Helena Vieira da Silva an IntLawGrrls transnational foremother)

It is an honor to give recognition to Maria Helena Vieira da Silva (left), painter of complex, abstract compositions. Born June 13, 1908, in Lisbon, Portugal, Vieiera da Silva moved to France in 1928 and became a naturalised citizen in 1956. A Chevalier of the French Legion of Honor and also the 1st woman ever to receive the National Grand Prize in Arts from the French government, she died in Paris on March 6, 1992. (photo credit)
For a long time Vieira da Silva has inspired me in my research on systems of law.
I was struck very early on by the vision that she had of her art. She said:

"I want to paint what does not exist as if it existed."

Her vision dovetailed remarkably with my own approach to the field of law. Intuitively, I have always chosen to study what does not exist or what has hardly emerged: in the 1970s, criminal law in the context of business; in the 1980s, human rights law; in the 1990s, the globalisation of law; and since 2000, the process of transformation of laws, which I called ordering pluralism.
The paintings of Vieira da Silva, moreover, energise me, encourage me to continue to my research despite the difficulties inherent in the growing complexity of systems of law, which are more and more evolutive and interactive.
Vieira da Silva did not fear to paint "with all the contradictions." Her paintings resemble labyrinths in which it seems one might get lost at any moment, and yet one always finds in them an opening, which she sometimes called the "enlightened path," other times "the way of wisdom." I placed it as an emblem on the cover (below right) of my book series Les forces imaginantes du droit (volumes 1 to 3 already have been published, while volume 4 is forthcoming).
In a world that is tragic, almost in chaos, the message that I have drawn from her in my work as a jurist is this: we must continue to study this globalisation, which demands that goods circulate freely yet at the same time builds walls to try to stop human beings from migrating. In uncovering an enlightened path, we make clear how concepts of law that appear contradictory and fragmentary can become transformative processes leading to "reciprocal humanisation."

* * *

C’est un honneur de témoigner ici ma reconnaissance à Maria Helena Vieira da Silva (au-dessus), peintre des compositions abstraites et complexes. Née le 13 juin 1908 à Lisbonne, Portugal, Vieira da Silva s’est installée en France en 1928 et devenue citoyenne par naturalisation en 1956. Chevalier de la Légion d’honneur, et la première femme à recevoir le Grand Prix National des Arts du gouvernement français, elle est morte à Paris le 6 mars 1992.
Vieira da Silva m’inspire depuis longtemps dans mon travail sur les systèmes de droit.
J’ai été très tôt frappée par la vision qu’elle avait de son art :

« Je veux peindre ce qui n’existe pas comme si cela existait ».

Cette vision rejoignait de façon étonnante mon approche du champ juridique, car j’ai souvent pensé que j’avais intuitivement toujours choisi de travailler sur ce qui n’existe pas ou ce qui émerge à peine : le droit pénal des affaires dans les années 70, le droit des droits de l’homme dans les années 80, la mondialisation du droit dans les années 90, et les processus de transformation des droits (pluralisme ordonné) depuis 2000.
De plus ses tableaux me transmettent une énergie positive qui m’incite à continuer mes recherches malgré les difficultés liées à la complexité croissante des systèmes de droit, de plus en plus évolutifs et interactifs.
En effet Vieira ne craint pas de peindre « avec toutes les contradictions ». Ses tableaux ressemblent à des labyrinthes où l’on risque à tout moment de se perdre, mais on y trouve toujours une ouverture qu’elle a parfois nommée « l’issue lumineuse », ou encore « la voie de la sagesse » dont j’ai fait l’emblème de la couverture (à droite) de ma série « Les forces imaginantes du droit » (vol. 1 à 3 parus, vol.4 en cours).
Dans un monde tragique et proche du chaos, son message, tel que je l’interprète comme juriste, est qu’il faut continuer à étudier cette mondialisation qui en même temps qu’elle impose la libre circulation des marchandises construit des murs pour tenter d’arrêter les migrations humaines. Ouvrir une issue lumineuse, c’est repérer comment des concepts juridiques apparemment contradictoires et fragmentés peuvent devenir des processus transformateurs pour une « humanisation réciproque ».