On March 26

On this day in ...
... 1913, in Chartres, France, a daughter, Jacqueline, was born to a novelist and her husband, a philosophy professor, who was killed in World War I combat the next year. As a school girl Jacqueline was a top student in Latin and ancient Greek, eventually studying the latter at École Normale Supérieure. Her 1940 marriage would end in divorce; she would be forced out of a teaching job and into hiding because of her Jewish heritage. After World War II, however, Dr. Jacqueline de Romilly (above left) would become a champion of the humanities, "one of France’s leading scholars of Greek civilization and language and only the second woman to be elected to the Académie Française." In 1973, de Romilly became the 1st woman professor at the Collège de France, the prestigious institution now home to IntLawGrrls ' guest/alumna Mireille Delmas-Marty. Professor de Romilly died, at age 97, in December of last year.

(Prior March 26 posts are here, here, here, and here.)

Paris in America in Paris, today

A distinguished group will examine Paris in America in Paris this afternoon, at a session this 'Grrl regrets having to miss.
Featured will be 2 IntLawGrrls guests/alumnae -- Professor Mireille Delmas-Marty (below left), holder of the Chair of Comparative Legal Studies and Internationalization of Law at the Collège de France de Paris, where the colloquium will occur, and Pittsburgh Law Professor Vivian Grosswald Curran (below, near right) -- as well as U.S. Supreme Court Justice Stephen Breyer (bottom left).
The program will begin at 3:30 p.m. at Amphithéâtre Marguerite de Navarre at the Collège, located at 11, place Marcelin-Berthelot.
Inspiring the session is the English-edition title of an 1863 book by Édouard Laboulaye, Mireille (left) explained in an interview published at page 504 of n the February 17, 2011, edition of Recueil Dalloz. Published under the pseudonym René Lefebvre, Laboulaye's Paris in America went through 35 French and 8 English editions. It is a celebratory study of American constitutionalism -- no coincidence then that, as Mireille noted, Laboulaye, in his day an adminstrator of the Collège de France, "contributed actively, along with the sculptor Bartholdi, to the realization of the Statue of Liberty."
Mireille challenged her interviewer's implication that comparative law might not provide a useful platform for study of contemporary democracies (my translation):

I would not say that comparative law is a 'subaltern' discipline; to the contrary, I believe that it is indispensable in an era in which the interdependence of states has become so strong that the interactions among diverse national and regional systems lie at the heart of the phenomena of the internationalization of law. ... Even constitutional judges, presented with difficult or undecided questions, have a need for comparative law.

Acknowledging that consultation by Breyer and colleagues on the Court had provoked controversy within the United States, Mireille stated:

Paradoxically, this controversy demonstrated that, in this time of globalization, comparative law is on the front lines in democracies.

This afternoon's program thus will begin with a tribute marking the bicentennial of the birth of Laboulaye. It's on that subject that Vivian will speak. Joining her on the panel will be Professor Jean-Louis Halpérin of Ecole normale supérieure; and Professor Bénédicte Fauvarque-Cosson (far right), of Université de Paris II and secretary-general of the Société de législation comparée. Olivier Dutheillet de Lamothe, conseiller d’État and former member of the Conseil constitutionnel, will moderate.
Commenting on the transition from the 19th to the 21st century will be Columbia Law Professor George Bermann, President of the International Academy of Comparative Law.
Finally, a session titled "Le juge constitutionnel et la démocratie" will mark the French publication of Justice Breyer's latest book, titled La Cour suprême, l'Amérique et son histoire in French, and Making Our Democracy Work: A Judge's View in English. A central theme of the book, as Mireille described it to her Recueil Dalloz interviewer:

Even if he remains optimistic, Breyer recognizes that the support of the public is never guaranteed. The relation between the constitutional judge and democracy is always susceptible to reinvention.

Taking part in a discussion of the book's themes will be Justice Breyer; Mireille; Guy Canivet of the Conseil constitutionnel; and Antoine Garapon, secretary-general of the Institut des hautes études sur la justice. Senator Robert Badinter, formerly President of the Conseil constitutionnel, will moderate.
Admission is free and open to the public.

Go On! Delmas-Marty on legal humanism

(Go On! is an occasional item on symposia and other events of interest)

This coming semester IntLawGrrls' honored alumna, Professor Mireille Delmas-Marty (below left), will present both a course and an intensive seminar at the Collège de France, the centuries-old Paris institution where she holds the Chair of Comparative Legal Studies and Internationalization of Law. (credit for photo (c) UNESCO/Charaffi)

The course, entitled Sens et non sens de l'humanisme juridique (Sense and nonsense of legal humanism), will be held at 2-3 p.m. every Wednesday (with 2 exceptions) from January 5 to April 6, 2011, at the Marguerite de Navarre auditorium of the Collège de France, 11 place Marcelin – Berthelot, Paris.

The seminar, to be held April 28 and 29, 20111, will examine Hominisation et humanisations : le rôle du droit (Hominization and humanizations: the role of law).
Specific lecture topics during the course will be as follows:

January 5: Des humanismes à l’humanisme juridique: naissance et métamorphoses du mythe

January 12: De l’humanisme juridique à l’humanisation des pratiques : mort et transfiguration

January 19: Durcissement du contrôle des migrations

January 26: Aggravation des exclusions sociales

February 9: Multiplication des atteintes à l’environnement

February 16: Persistance des crimes internationaux « les plus graves »

February 23: Ambivalence des nouvelles technologies

March 2: Initiatives pour construire une citoyenneté à plusieurs niveaux

March 16: Propositions sur la responsabilité sociale des Etats et des entreprises
March 23: Jalons pour la survie des générations futures
March 30: Propositions pour fortifier la justice pénale internationale
April 6: Efforts d’innovation juridique face aux innovations technologiques
May 11: Conclusion - un droit en devenir pour une humanité en transit

Details here.

Happy 3d birthday to us! Again.

Today we IntLawGrrls celebrate our 2d 3d birthday.
Huh?
Well, in an unintended display of math anxiety, this founder/'Grrl declared it our golden birthday on this day a year ago -- that is, said then that we'd juist turned 3 on the 3d day of the 3d month. In fact, though we were entering our 3d year, it had only been 2 years since the launch of this blog on "international law, policy, practice." But no one called us on the arithmetic error, and so today we get to celebrate gold all over again.
Since we announced our birth on what folks in Japan marked as Girls Day 2007, we've grown like Topsy.
We're proud cosponsors of 2 autumn conferences -- 2009 and, yet to come, 2010.
We're proud that 'Grrls have been invited to speak at other conferences, to contribute scholarship, blog posts, and op-eds, on account of their work here.
Contributing more than 3,000 posts have been nearly 3 dozen permanent IntLawGrrls voices, plus more than 100 women who've joined us as guests. 'Grrls and guests/alumnae have ties to nearly 2 dozen countries in our world. As listed in full in our righthand column, we include, to name a very few, distinguished presidents Lucy Reed and Hélène Ruiz Fabri, distinguished scholars like Mireille Delmas-Marty and Hilary Charlesworth (and so many others), distinguished diplomat Diane Orentlicher, distinguished judges Patricia M. Wald and Marilyn J. Kaman, and distinguished U.N. expert Gay McDougall. And we've been proud over the years to honor no fewer than 70 transnational foremothers -- women who've inspired us, from "A" (Alice Paul) to "V" (Virginia Leary).
To all our contributors and all our readers -- today we will pass the milestone of 400,000 viewings since our founding! -- heartfelt thanks. We look forward to a Year 4 future of sharing lots more good things.

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 ».

Read On! Ordering Pluralism

(Read On! ... occasional posts on writing we're reading) Shameless self-promotion, I didn't realize it was already on the market, my most recent translation: Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World (2009) by Collège de France Professor Mireille Delmas-Marty (right) (prior IntLawGrrls posts).
Better than the jacket blurb you'll find by following the link is this excerpt from the preface by U.S. Supreme Court Justice Stephen G. Breyer:

This book ... helps us understand how law among nations and beyond single nations develops through cross-referencing, through efforts to harmonize, and through the creation of hybrid rules of substance and procedure. It helps us understand where this law develops, regionally or internationally. And it helps us understand the significance of the temporal leads and lags created as this law develops over time. In a word, the book helps us understand, talk about, and evaluate what is happening before our eyes.

Bonne lecture!

Investigating criminal justice

Here's about all that many of us trained in the common law would have to say about our Continental counterpart:

Criminal procedure in civil law countries is inquisitorial. Dating back to the Code Napoléon of 1808, it features a juge d'instruction who both conducts police inquiries and issues judicial orders. The dominance of this investigating judge makes the inquisitorial system of the civil law entirely different from the accusatorial system of the common law.

But this comparative criminal law nutshell distorts reality.

That's in part because neither the inquisitorial nor the accusatorial method is any longer discrete. Rather,

aspects of each method now occur in the other to a degree that distinguishing the two 'is almost a "metaphysical question" which is now sterile and obsolete,'

as I wrote a while back (p. 833 n.144), quoting a chapter by Françoise Tulkens (left), then a law professor at Belgium's University of Louvain and since 1998 a Judge on the European Court of Human Rights, in The Criminal Process and Human Rights (1995).

The nutshell above is also distorted because even in France, the country that promulgated the Napoleonic Code, the investigating judge long ago lost considerable power. Our colleague Mireille Delmas-Marty (below left), Chair of Comparative Legal Studies & Internationalization of Law at the Collège de France and editor of the 1995 Criminal Process volume quoted above, traced this evolution in a recent Le Monde commentary. Her essay called into question aspects of a reform package put forward in March by a committee of jurists assembled last year by France's Minister of Justice, Rachida Dati (right).

Delmas-Marty noted that the juge d'instruction used to handle 40% of all criminal matters, "making him the most powerful man in France." No more. The juge's share dropped to 20% by 1960 and shrank to 8% by 1989. Today it's a measly 4% of all criminal matters.

Why the decrease?

Among the reasons, Delmas-Marty asserted, were reforms that increased the protections owed to persons under investigation. Even as those reforms were instituted, the prosecution gained more authority to act during the preliminary phases of a criminal case, and by means less cumbersome than those of the investigating judge. Examples of that new authority:

► Since 2007 victims seeking to pursue a criminal case via the partie civile mechanism were required first to address the prosecutor, not the juge. (Aside of note: Exercise of the power of investigating judges in Spain to pursue extraterritorial criminal investigations even in the face of opposition by the public prosecutor now faces resistance. As detailed here, here, and here, the Spanish government is working to require concrete jurisdictional links to Spain and "proof that no other national court system has taken up a given case" -- even as the most noted exerciser of extraterritorial criminal jurisdiction, Judge Baltasar Garzón, faces a misconduct inquiry related to an investigation into crimes during Spain's Franco era.)

► A bill that would effect domestic implementation of the Rome Statute of the International Criminal Court likewise gives the prosecution a "monopoly" over the pursuit of international crimes.

Thus did the French system shift toward an accusatorial method -- in Delmas-Marty's view, not in a good way. Prosecutorial power expanded even as fair-process safeguards retracted. The European human rights court wrote last summer in Medvedyev v. France that

the public prosecutor is not a 'competent legal authority' within the meaning the Court's case-law gives to that notion: as the applicants pointed out, he lacks the independence in respect of the executive to qualify as such.

In her commentary Delmas-Marty urged the following "re-equilibration of powers" as the current reform effort proceeds:

► Guarantees of independence and impartiality of the public prosecutor must be reinforced.

► Should the juge d'instruction be replaced with "a new 'judge of investigation and of liberties,'" as proposed, the granting to the latter judge of genuine power to supervise the public prosecutor throughout the course of investigation. Quoting Sorbonne Law Professor Geneviève Giudicelli-Delage, Delmas-Marty called for an "'optimum distance'" between the judge and the prosecution "because if the judge is placed too close he is blinded, but if he is too far away he is blind."

► Rights of the accused and the presumption of innocence must be strengthened by allowing for greater judicial oversight of prosecutorial action and for improvement of legal aid for the poor.

► Victims who wish to proceed as parties civiles should once again be permitted ask the judge directly to open a criminal investigation.

In words applicable to any system of criminal justice, Delmas-Marty concluded:

Whether it is a matter of the investigatory or the adjudicatory phase, it is not just technicalities, but also policy, that is at stake. The legitimate desire to simplify procedures and speed decisionmaking should not result in a power shift that works to the detriment of judges whose independence is guaranteed by the Constitution and to the benefit of a prosecutor who remains under the orders of the Minister of Justice.

Why subject legal thought to SurveyMonkey?

Regarding the most-influential-legal-thinker poll that Fiona describes below, the devious among us might wonder whether Brian made his entered-profession-by-1960s cutoff with the devilish purpose of generating feminist buzz.
On reading it last night I myself set to pounce -- to e-mail Brian to find out how Catharine A. Mackinnon (right), to name one unquestionably influential 20th C. legal thinker -- had been omitted. Alas, I learned from WikiPedia that though she's but a few years younger than nominee Bruce Ackerman, she seems not to have earned her J.D. till well after him. No surprise; later entry into one's profession is a hallmark of women's progess.
Even considered within its own time frame, the poll is sadly Anglo-Amero-centric. In a comment to Fiona's post Hannah Arendt (left) was rightly nominated by our colleague Kevin Jon Heller. In global circles the name of my colleague Mireille Delmas-Marty (below) surely would surface. I know others will have other names.
There are so many women and men who've influenced our legal thinking. Do we really need one man's list to tell us who they are?

A better way to combat trafficking?

I'd lke to thank Janie Chuang for her excellent post yesterday and follow up by promoting the work of my friend Johanne Vernier (photo at right), currently a doctoral student at the University of Paris I and intern at Echanges et Partenariat in Amsterdam. Johanne's work focuses on the relationship between trafficking, migration and prostitution and the fact that criminal laws in these three areas are at cross purposes and tend to punish the foreign victims of trafficking instead of protecting them from exploitation. According to Johanne, shifting the focus to preventing and punishing exploitation while protecting human dignity would help create a better balance between protected interests and criminal repression. Johanne will be discussing the results of her research at the upcoming 11th Joint Stanford-University of California Law and Colonialism in Africa Symposium, which this year will focus on Trafficking Women and Children after the End of Slavery: Historical and Contemporary Perspectives from Africa and Beyond (at Stanford, March 19-21). Johanne's work is based on models developed by Mireille Delmas-Marty to describe who in society responds to crime and/or social deviance in light of the interests protected and shows, as Janie's post highlights, that with respect to trafficking, states are often focusing on the wrong behavior for the wrong reasons.

Go On! Liberty & security amid global threats

(Go On! is an occasional item on events of interest) While many of us in the United States have sought to expose the devils in the details of post-9/11 policies, an esteemed Paris colleague has taken on the valuable task of drawing the big picture.
The work of Mireille Delmas-Marty (above), Professor of Comparative Legal Studies and the Internationalization of Law at the Collège de France (below lelft), 1st reminds us that there is a big picture – that contemporary issues of liberty and security, even when manifested at the national level, cannot be contained within the frame of law of any single nation-state. 2d, she illustrates the complex analysis – not only of national, regional, international, and supranational legal regimes, but also of social science disciplines – that must be undertaken in order properly to identify and understand the myriad concerns at stake in any moves to suppress liberty in the name of safety.
Delmas-Marty will refine this study in Libertés et sureté dans un monde dangereux (Liberty and Security in a Dangerous World), the public course she will deliver weekly this winter at the Collége. The description:

By a law enacted on February 25, 2008, France instituted a “retention of security,” which permits the state to continue to detain a prisoner who has completed his sentence for a year, a period that is renewable indefinitely by reason of “dangerousness.” The way for this measure having been prepared by a succession of laws on recidivism, this law thus established a rupture in the relation of guilt, responsibility, and sanction. It is a rupture that risks dehumanizing criminal justice.
How did this come about? The answer cannot be reduced to a discussion within France itself (that is, that the right wing is repressive, the left wing permissive). Keeping in mind the convergence of other systems, such as the European and international systems, we hypothesize an indirect effect from the attacks of September 11, 2001, which in symbolic and legal ways freed policymakers from the duty to respect the proper limits of the rule of law, and thus unleashed shock waves that rendered issues less controllable matters that previously had been confined to the domestic legal framework.
Besides its purely national aspects, the question in fact relates to the interdependencies that lie at the heart of law’s internationalization. Confronted by genuine threats to persons, states, and even the planet, the entanglement of national, European, and global normative spaces doubtless contributes to incertitude in response. Whether it is a matter of transformation of social control, of mutation in the rule of law, or in fluctuation in the global order, it favors all at once results and reactions to them, problems and the solution to problems.

Details on specific lectures here.
The course will lay the groundwork for a June 8, 2009, conference entitled Les politiques sécuritaires à la lumière de la doctrine pénale des 19ème et 20ème siècles (Security Policy in Light of 19th and 20th Century Criminal Law Jurisprudence), organized along with Professors Geneviève Giudicelli-Delage, Université de Paris 1 (Panthéon-Sorbonne), and Jean Louis Halpérin, École Normale Supérieure, Ulm.

Inter-national judicial conversation

Asked to explain judicial receptivity to international law, Judge Guy Canivet (pictured, middle) of the Conseil constitutionnel spoke of values; that is, the role of the judge as the "bearer of the value of justice," of the "value of the democratic quality of the state." That's the difference between U.S. and French judges, interjected U.S. Supreme Court Judge Stephen Breyer (2d from left): the French "start with principles," while the Americans "start with concrete problems." "Yes, I worry about those things too," Breyer continued. "When? When I have a case that calls for it." So began this week's conversation between 2 countries' high court judges at Cardozo Law School in New York. Discussion touched on topics as varied as executive detention and the legal status of embryos, as AIDS and universal jurisdiction. Posing questions were Cardozo's Michel Rosenfeld (far right) and Mireille Delmas-Marty (far left), Professor of Comparative Legal Studies & the Internationalization of Law at Collège de France.
The public session capped a 2-day private roundtable meeting of Delmas-Marty's brainchild -- Réseau ID, the Franco-American Network on the Internationalization of Law, which 1st met in Paris last year. Participants included a French ambassador and other French judges (from not only the Conseil constitutionnel but also the Conseil d'État); U.S. Court of Appeals Judge William A. Fletcher; former Solicitor General Charles Fried; Emmanuelle Jouannet, Vivian Grosswald Curran, George Bermann, Harold Hongju Koh, and Jonathan Wiener; IntLawGrrls Diane Marie Amann (aka Grace O'Malley), Hélène Ruiz Fabri (aka Olympe de Gouges), Naomi Norberg (aka Anna Koransky, 2d from right as translator extraordinaire for the public event).
A 2008 meeting of the Réseau, in Paris, is contemplated. We'll always have New York.