Governing globalisation through law

Introduction

Governing globalization through law implies building the rule of law without a world State, and therefore rethinking the tool that law, traditionally identified with the State, represents in the face of the interdependencies born of globalization and the challenges they generate. Economic and financial crises; social crisis; global terrorism; the humanitarian disaster of migrations; the climate crisis and, to top it all off, the coronavirus health crisis: it is time to take them seriously, as the cacophony of this polycrisis amplifies. As if citizen indignation at security abuses, the anger of the yellow vests at social inequalities, the revolt of the younger generations and the call of scientists before climate change had not been enough, it took a simple virus, smaller than a butterfly’s wing, to shake the world, to the point of finally shaking the certainties of our leaders. 

The great powers, or merely thinking of themselves as such, proud of their new technologies and convinced of their political and/or economic power, are proving incapable of coordinating on a global scale. As if this tiny living being had come as a messenger to challenge our globalized humanity and reveal its fragility, offering it one last chance to realize its common destiny. In sum, a hu- man commitment to better govern a galloping and unpredictable globalization. 

1- Between sovereignism and universalism 

Our concept of sovereignty needs to be renewed. In order to create the rule of law without a true world State, universalism is too ambitious and sovereignism, by retreating into national communities, is too weak. Reconciling sovereignism and universalism requires thinking about them interactively. It is not a matter of choosing between the two, but of combining them in order to reconcile them. This is why we still need national communities to hold accountable the main actors of globalization (States and transnational corporations, TNCs), but only the world community will be able to define common objectives and the resulting responsibilities. And only their interweaving will prevent the two dynamics from opposing and neutralizing each other, leading to a society of “unlimited irresponsibility.” 

It is therefore necessary for sovereignism to be “internationalized,” as national legislations incorporate international agreements. For example, in environmental matters, national legislation is interpreted in light of national states’ international commitments or, more broadly, in light of the international conventions put in place. 

At the same time, this process of internationalization is leading national judges, in this case National judges, to become European, or even global judges, when they directly apply European or international standards. 

The opposite phenomenon is also necessary because universalism, in order to be applicable in the real world, needs to be “contextualized.” The legal technique of harmonization makes it possible, without going as far as unification, to give a concrete form to the idea of “ordering pluralism.” [2]. In order to achieve this, the European Court of Human Rights (ECHR) allows a “national margin of ap- preciation” on sensitive issues, such as the ban on wearing the full veil in places open to the public. To uphold respect for privacy, freedom of religion and free- dom of expression, the “restrictions necessary in a democratic society” clause allows the Court to grant national judges a “national margin” of appreciation, but only a margin that does not allow a complete re-nationalization. If a natio- nal decision let a State exceed the limits of compatibility, it will be overturned. 

In economic and financial matters, we find the same idea of a “contextualized” universalism with the formula of “common and differentiated responsibilities,” for instance in the past decisions of the Dispute Settlement Body (DSB), the WTO’s appellate body, or in the Kyoto Protocol or the Paris Climate Agreement. 

What seems to emerge from these international agreements is the idea of a multiple commonality, at the crossroads between uniformity and plurality, found in the notion of “functional equivalence.” [3]. This notion also takes into account the empirical reality that each legal system has its own logic and context. Beyond normative and institutional comparisons, it makes it possible to assess whether the effects produced by a national legal system meet the requirements set by an international agreement. Particularly suited to the procedure of peer evaluation, this notion is used in particular in the fight against international corruption [4]. 

The result is an imperfect harmonization between sovereignism and universalism, a convergence through a kind of “legal tinkering.” There is no genuine law of globalization, that would be perfectly coherent and neither national nor international. In practice, to paraphrase the biologist François Jacob’s formula, describing the evolution of life, jurists make “new with old.” [5]. 

In other words, they make “new” by reinterpreting old law, national or inter- national.By crossing these ancient forms, they replace binary logic with more complex forms such as “internationalized” sovereignty; or “contextualized” universalism. This is why lawyers are led to think through complexity. 

2- Thinking through complexity 

Of course, it would be possible to govern globalization through law in a simple way. It would suffice to set up a hegemonic system, by extending the legislation of the most powerful country to the rest of the world. There has been the American attempt regarding financial crimes and one can glimpse the Chinese dream over the horizon of the “New Silk Roads.” [6]. Yet so far no empire has functioned on a planetary scale. 

The traditional image to which legal thought refers is that of the pyramid of norms, built by each State in a linear, hierarchical and static way. However, in a globalized world, the legal system is plural, interactive, combinatorial and evolutionary, because it is built from interactions that are based on alternative logics, such as fuzzy logic. This logic, which handles the concept of partial truth, consists in assessing the degree of proximity of a practice to the reference norm. A careful study of the judgments of the ECHR shows that fuzziness is not always synonymous with arbitrariness and inconsistency: it is possible to construct rational and predictable reasoning with fuzzy concepts, provided that the judge makes an effort to be transparent, in clarifying his criteria, and rigorous, in applying the same criteria with the same weight from one case to another. Thus formalized, fuzzy logic makes it possible to adapt legal reasoning to situations too imprecise to be conceived in binary logic. 

The autonomous notion of “criminal matter” is a striking example. Whereas “criminal” is traditionally what the legislature has so defined, the European Court of Human Rights has developed the idea that the guarantees of the legal regime specific to criminal law can be extended to areas related to “criminal matters.” However, the judge still has to explain the criteria justifying the application of this concept (transparency). What makes a norm or sanction sufficiently close to criminal law to require compliance with more demanding rules (legality, non-retroactivity, etc.)? The Court has laid down several criteria, such as the severity of the sanction or the generality of the offence.  

Fuzzy logic becomes necessary in a legal universe all the more imprecise as it becomes more global. But it implies a transfer of power to the interpreter (the judge or a similar body) and will only be predictable if the motivation is transparent and the reasoning rigorous. 

It should be added that fuzziness is sometimes accompanied by a non-binding and non- sanctioned soft law. In contrast, hard law is precise, binding and sanctioned. Less constraining at first sight, soft law is sometimes more effective, and ultimately more repressive, than hard law [7]. 

Compliance provides a good example of this, because the settlement mechanism (plea deal [8]) at the origin of compliance constitutes a relaxation of American criminal law. It offers the possibility, instead of initiating criminal proceedings, to proceed to a negotiation between prosecution and defense in order to dismiss criminal charges. The prosecutor saves years of searching for evidence, while the accused (often top executives) avoid a long trial that can result in very heavy prison sentences, and permanent damage the company’s image. This is in everyone’s interest, including the U.S. Treasury, which collects fines amounting to billions of dollars. 

CSR provides another example of the interaction between soft law and hard law. Initially, responsibility meant participation in company decisions but without the duty to account for them. However, this soft law has become harder over time because of the consequences attached to corporate commitments. Commitments, even spontaneous and voluntary, became actionable against companies in order to hold them liable, this time legally. Several offences, such as misleading advertising or some labor code offences, which trigger civil liability proceedings, allow for transformative lawsuits. 

The same is true of the new “climate lawsuits,” filed not only against States, but also against companies. The French statute on the duty of vigilance [9], adopted in 2017, following the collapse of the Rana Plaza textile workshop in Bangladesh, contributes to this tightened accountability. As a way of toughening soft law, this statute imposes on companies the duty to check with subsidiaries and subcontractors all along the value chain. 

Finally, even if one does not yet measure the disruption that could result from the new PACTE statute of 2019 [10] on the raison d’être of companies and the expanded corporate interest, it can be estimated that the hardening of these notions could become one of the processes contributing to the establishment of an economy of public goods [11] and a new anthropology is emerging between humanity and nature. 

3 - A global governance aggregating Knowledge-Will-Power 

In the conclusion of the book Aux quatre vents du monde [12], I transposed a poem by Edouard Glissant entitled “Au congrès des vents,” imagining a kind of congress bringing together all the major actors of globalization, each one envisioning himself as “master of the winds.” Then came a “little unnamed wind from the countryside.” As a citizen of the world, whose vital impetus represents the new generations, it asserts “we don’t need a master of the winds,” because it will either be powerless or turn into a tyrant. It is better that everyone takes responsibility for a share of the common goods. In order to preserve these goods, we therefore need a constellation of actors, both public and private. 

States cannot be the only public actors. Alongside them, local and regional authorities, already organized in networks, contribute to structuring globalization horizontally. Judges and public prosecutors (national and international) will undoubtedly play the role of third party guaranteeing impartiality, an essential condition of the rule of law that lawyers will help to invigorate. In some domains, such as economic law or digital law, the Court of Justice of the European Union has even become a hub of global regulation and has already made a major contribution to the conceptualization of a common law. However, it cannot be the only institution in charge of democratic control. It is important in Europe to have two supreme courts: a human rights court and a court destined originally to the “common market.” Although it now has incorporated the fundamental rights enshrined in the European Charter of 2000, the CJEU does not replace the ECHR in human rights matters. Maintaining this bipolarity (market/human rights) with two courts (CJEU and ECHR) is perhaps one of the keys to a dynamic balance. 

At the global level, one can imagine a similar balance between the WTO’s appellate body, the ILO’s expert panel, provided its control over social rights is strengthened, as well as the UN Human Rights Committee. 

One could even imagine a Common Goods Court responsible for ensuring coherence of the whole. Unless the International Court of Justice becomes sufficiently autonomous to play this role. In any case, excessive sectorization of international law must be avoided. 

As for implementation, the role of national prosecutors should not be neglec- ted, as they might be tempted to take their cue from the American prosecutors’ practices for financial offences falling within the extraterritorial application of U.S. law. At the international level, mention should be made of the ICC prosecutor for the “most serious” international crimes. The newly created European public prosecutor could be part of this constellation, provided that he is powerful enough to be effective, like the American prosecutor, who remains a reference. Yet, this European public prosecutor, as the Member States wanted it, lost the autonomy contemplated by the expert group I chaired (Corpus Juris, 1998 [13]), which desired to endow the office with a certain autonomy vis-à-vis the Member States. The European public prosecutor’s office, which finally came into operation in 2020, is much less autonomous. Only the public prosecutor and his deputy have European status. As a result, the European prosecutor’s office remains dependent on national legislations and status specific to each European country. Although it risks being weakened, the very existence of a European prosecutor is a step forward and its future will also depend on how the role is played in the first few months of operation: a high level of competence and a strong charismatic authority could make up for this legal weakness. 

Finally, an important role in the regulation of globalization is played by civic actors, i.e. citizens, NGOs, associations and trade unions. Civil society is even broader, since it includes private economic actors (TNCs have become real powers competing with States) and scientific actors, whose knowledge is sometimes decisive, especially in a field such as climate change. The alliance between (scientific) knowledge and (civic) will should make it possible to oversee (political and economic) powers. 

At the European level, and a fortiori at the global level, the classical theory of the separation of powers cannot be directly transposed, if only because there is no global executive power, nor a global legislator. On the other hand, jurisdictions are involved in global governance, even when their status remains linked to the national framework. Montesquieu’s theory is therefore not transposable, as it would presuppose a global State, nor feasible nor desirable. 

Thus, we must seek to transpose the democratic idea of countervailing powers (in the absence of a global state). In the absence of a real separation between the three powers, the aggregation Knowledge-Will-Power could ensure a sort of rebalancing, each actor having a role in the elaboration and application of norms; to the extent that scientists’ independence and competence are respected and civic actors’ impartiality is guaranteed. Hence the importance of regulating possible conflicts of interest. 

In short, it is no longer a question of separating powers, but of combining Knowledge and Will which, in the face of economic or political Powers, or both, are the real embodiments of a community emerging from a moving law. 

Conclusion - Thinking a moving law 

Clearly, the law is moving: this is why the emerging normative phenomena can- not be conceived in light of the pyramid of norms metaphor alone. Despite the pillars, the foundations, the fundamental rights, we have entered a turbulence zone, inherently unstable. Of course, the metaphor of networks better reflects horizontality (networks of cities, of judges) than the metaphor of the pyramid [14], but it does not sufficiently express the growing instability that characterizes our societies. Hence the metaphor of clouds and winds [15]. Beyond the usual problems of translation (the rule of law is not synonymous with état de droit, human rights can refer to both the State subject to the law and the State that makes laws, common law does not have the same meaning as droit commun, etc.), the “founding concepts” should be replaced by “transformative processes.” From then on, little by little, the meanings of words are surreptitiously subverted: this is how sovereignty that was intended to be “solitary” could become “solidary.” 

To sum up, one cannot choose between sovereignism and universalism, nor restrict legal systems to a hierarchical and binary logic; nor admit the appropriation of global common goods by States or TNCs; nor transpose the separation of powers on the scale of a world government; nor think of the global community as a community of memory. This is why the jurist must be creative and the law innovative. Of course, it is not a question of giving free rein to an unbridled imagination, but simply of going off the beaten track, because reality no longer passes through it. It involves a complexity that could paradoxically strengthen justice and new narratives of anticipation that should help to balance mere force. 

To achieve this, we will have to change our cardinal points. In this confused world, there is no longer a North Pole, in the sense that it is impossible to choose among the adverse winds of globalization. But we can imagine an unusual compass [16]. At the centre, generated by the spiral of legal humanisms, an octagonal receptacle collects water, the symbol of life, where the regulatory principles reconciling the headwinds of globalization meet. Plunged into this receptacle, the plumb line of good governance would stabilize disorderly movements without immobilizing this world in motion. 

Thus, inspired by the “imagining forces of law,” [17] the jurist can try to respond to Pascal’s disillusioned observation in the 17th century that “since justice could not be strengthened, force was justified, so that justice and force might be together and peace might exist, which is the sovereign good.” If the spiral of humanisms strengthened justice, the octagon of regulatory principles would balance force. This does not mean, however, that we should adhere to the utopian dream of the two K: the “Great Peace” of the Chinese classics, taken up at the end of the 19th century by the jurist Kang Youwei, and the “Perpetual Peace” of the philosopher Immanuel Kant in the 18th century. In a more modest way, the goal is to put in place devices of appeasement, making peace with the Earth. 

Mireilles Delmas Marty

Reference

[1] The content of this article is based on the contribution pre- viously published by M. Delmas-Marty in European Journal of Risk Regulation, juin 2020, <https://www.cambridge.org/core/journals/ european-journal-of-risk-regulation/article/governing-globalisation -through-law/079248F834E13721F85F6805733E059E/core-reader>. 

[2] Towards a truly common law: Europe as a laboratory for legal pluralism, Cambridge University Press, 2002 ; rdering Pluralism : A Conceptual Framework for Understanding the Transnational Legal World, Oxford, Hart Publishing, CERDIN, coll. French Studies in International Law, 2009, 175 p. 

[3] See M. Delmas-Marty, M. Pieth and U. Sieber (ed.), in Les chemins de l’har- monisation pénale, Société de législation comparée, Vol. 15, May 2008, p. 423 et seq. 

[4] op. cit, p. 425. [5] F. Jacob, La logique du vivant, Gallimard, 1976. 

[6] A. Garapon, Les ‘nouvelles routes de la soie’ : La voie chinoise de la mondialisation, IHEJ, 2016. http://ihej.org/wp-content/ uploads/2016/11/ La_route_de_la_soie.pdf 

[7] M. Delmas-Marty, Le flou du droit, PUF, 1986, p. 336 (2e ed. 2004) ; M. Delmas-Marty, Les forces imaginantes du droit (II), Le pluralisme ordonné, 2006, p. 314. 

[8] A. Garapon and P. Servan-Shreiber (ed.), Deals de justice - Le marché amé- ricain de l’obéissance mondialisée, PUF, 2014. 

[9] L. n° 2017-399, 27 mars 2017 relating to the duty of vigilance of parent and client companies: JO 28 March 2017. 

[10] P. L. Périn, Intérêt social élargi : un nouveau Pacte pour l’entreprise, La Revue des Juristes des Sciences Po 16, janv. 2019 

[11] M. Delmas-Marty, Les forces imaginantes du droit (IV), Vers une Communauté de valeurs, Seuil, 2011. 

[12] M. Delmas-Marty, Aux quatre vents du monde - Petit guide de navigation sur l’océan de la mondialisation, Seuil, 2016. 

[13] M. Delmas-Marty and J. Vervaele (ed.), The Implementation of the Corpus Juris in the Member States: Penal Provisions for the Protection of European Finances, 4 vol., Intersentia, 2000. 

[14] See F. Ost and M. van de Kerchove, De la pyramide au réseau ? Pour une théorie dialectique du droit, Publications des facultés universitaires Saint- Louis, 2002. 

[15] M. Delmas-Marty, Aux quatre vents du monde, op.cit. ; M. Delmas-Marty, Sortir du pot au noir : l’humanisme juridique comme boussole, Bouchet Chastel, March 2019. 

[16] See M. Delmas-Marty, Une boussole des possibles. Gouvernance mon- diale et humanismes juridiques, Éditions du Collège de France, collection « Leçons de clôture », 2020. 


Appreciation

This article was originally published in French in Le Grand Continent. It was then translated by Joachim-Nicolas Herrera and published in the European Journal of Risk Regulation in June 2020. 

It was edited by Raphaël Cario, Projects Manager at EuropaNova. 

      

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Résumé
Governing globalization through law implies building the rule of law without a world State, and therefore rethinking the tool that law, traditionally identified with the State, represents in the face of the interdependencies born of globalization and the challenges they generate. Economic and financial crises; social crisis; global terrorism; the humanitarian disaster of migrations; the climate crisis and, to top it all off, the coronavirus health crisis: it is time to take them seriously, as the cacophony of this polycrisis amplifies. As if citizen indignation at security abuses, the anger of the yellow vests at social inequalities, the revolt of the younger generations and the call of scientists before climate change had not been enough, it took a simple virus, smaller than a butterfly's wing, to shake the world, to the point of finally shaking the certainties of our leaders. The great powers, or merely thinking of themselves as such, proud of their new technologies and convinced of their political and/or economic power, are proving incapable of coordinating on a global scale. As if this tiny living being had come as a messenger to challenge our globalized humanity and reveal its fragility, offering it one last chance to realize its common destiny. In sum, a human commitment to better govern a galloping and unpredictable globalization.
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