Comparative legal studies and the internationalization of law

1. Criminal law, criminal policy, legal logics and the emergence of a common law

His work initially focused on criminal law, under various aspects : business law, environmental law, biotechnology law, procedure. By including other forms of social control such as civil or administrative sanctions, police measures, educational and medico-social measures, or conciliation and arbitration procedures, my research then broadened from criminal law to criminal policy, and then to comparative criminal policy. To this was added the " human rights law " (constitutional and international), as a benchmark and limit for States, and Europe (European Union and Council of Europe), as an area of internationalization. The articulation between domestic and European law, with the interplay of " national margins of appreciation ", led to a more theoretical reflection on legal logics.

Since 1992, his work at the Institut Universitaire de France, the Collège de France and the Académie des Sciences Morales et Politiques has focused on the emergence of a common law, both regional (Europe) and global. The aim is less to study a legal category that has alreadỳ stabilized, such as domestic or international law, than to observe a process, a dynamic " d'internationalisation du droit " which calls for a method combining the comparison of national laws (in Europe and beyond̀, notably in China) and the analysis of international law in its various sectors, notably the international law of human rights, trade or the environment.

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Hence the title of the Chair at the Collège de France : " Comparative legal studies and the internationalization of law ".

Yet this title, marking an opening, suggests a dynamic that disrupts the traditional vision of legal systems as coherent but closed in on themselves. The disruptive effect is heightened by the ambiguitý of the term " internationalization ", which refers to : either the import of external sources, through the integration, spontaneous or forced, of foreign and/or international law ; or the export of domestic law, through its extension, proposed or imposed, outside the national territory : one thinks of extraterritorial or even universal jurisdiction, practiced in particular by American and sometimes European courts.

These disruptions may seem pathological, paving the way for the deconstruction of legal systems with regard to the three conditions of their validity : formal (predictability and legal certainty), empirical (effectiveness, efficiency) and axiological (legitimacy, coherence around shared values). But they may also herald a metamorphosis in the very notion of legal order, which would become much more complex if it were no longer identified with states alone, but extended to the entire planet.

Associating comparative studies with the internationalization of law is therefore not a neutral choice. It means taking the gamble of a metamorphosis at the end of a non-hegemonic internationalization, since it would not be imposed by a single system, but would attempt to combine the various national legal systems with each other and with international legal instruments. In other words, it takes a pluralist perspective, favouring interaction rather than hierarchy, and an evolutionary one, favouring transformative processes over stabilizing concepts.

2. A triple metamorphosis

Gathered together in a four-volume series entitled " Les forces imaginantes du droit ", research on this pluralist common law will start from an inventory : on the one hand, the weaknesses of legal universalism (vague concepts, contradictory values, ineffective norms) ; on the other, the limits, indeed the powerlessness, of relativism in the face of immaterial flows (financial or information flows), risks (ecological or health risks), and sometimes crimes (terrorism or corruption), which are becoming globalized(The relative and the universal).

Hence the hypothesis of a triple metamorphosis :

• metamorphosis of the legal order, when the formalism of norms is transformed by vagueness, which restricts legal certainty without imposing true unification, but can contribute to flexible harmonization and the emergence of a new model, neither sovereignist nor universalist, called " ordered pluralism " ;
• the metamorphosis of governance actors, marked by their diversification (state, inter-state and non-state actors) and the rise in power of judges and international organizations, as well as civil society (economic operators, scientific experts, civic actors), which threaten the effectiveness of ordinary law, unless there is a " refoundation of powers " that would enable the establishment of a state of law without a state ;
• finally, the metamorphosis of values, which calls into question the axiological legitimacy of national rights based on the new mechanisms of international criminal law, " human rights law " and " global public goods ", but could herald the emergence of a global community of values characterized by a new, plural humanism and " relational ".

3. Legal humanism and the challenges of globalization

Humanism is threatened by the security challenge, reactivated by the attacks of September 11 2001, which, by exacerbating the tension between freedom and security in a dangerous world, carries with it a risk of dehumanization that contradicts head-on the notion of a community of values. Humanist anthropology, based on free will and the universalism of human rights, is threatened by a warlike anthropology : forced disappearances, indefinite internment, manhunting, targeted assassinations... In this way, people labelled as dangerous are dehumanized, whether they are terrorists qualified as illegal enemy combatants, former criminals feared to re-offend, the mentally ill, minors in danger, or even illegal aliens.

Added to this is the challenge posed by markets, the real paradox of a globalization process that is transforming the welfare state into a market state, opening up to goods and capital while closing in on human beings. While financial flows, like information flows, cross borders in a fraction of a second, walls and other protective barriers are going up everywhere in an attempt to stop human migration ; while global prosperity is rising, inequalities are increasing. Globalization has had the effect of dissociating the traditional functions of the market (circulation/redistribution) and pitting economic and financial freedoms, protected on a global scale, against social rights, which are referred back to the States. The margin for rebalancing left to States is all the more limited as the competition between legal systems (rights market) leads to a reduction in social guarantees in order to attract investors.

Finally, the technological challenge is marked by the ambivalence of digital technologies, which promote both democracy and totalitarian practices of surveillance and control (cf. the concept of " traceability " transposed from dangerous products to humans) ; biotechnologies, which are at once at the service of greater freedom, for example in terms of procreation, but also facilitate the commodification of the human body (sale of organs on the Internet, baby business of " surrogate mothers ") and the formatting of the species (eugenics known as " liberal ", " improvement " of the human species advocated by certain transhumanists).

In the face of these challenges, anti-humanist currents (both scholarly and commercial/technological) have no qualms about regarding legal humanism as a myth that all too often resembles a mystification. In response to these sometimes pertinent criticisms, the latest lecture at the Collège de France, Sens et non-sens de l'humanisme juridique, explored ways of " d'humaniser la mondialisation ", i.e. of restoring meaning to legal humanism, understood as a process of reciprocal humanization to which the law could contribute.

4. The role of law

Enlightened by an interdisciplinary seminar involving biologists, linguists, anthropologists, historians and philosophers (" Hominization, humanization : the role of law "), the exploration was to lead to a reflection on the triple role of law.
Resisting dehumanization is no longer just a question of national legal practices, but also of the emergence in international law of " the irreducibly human ". This universal term encompasses non-derogable human rights, starting with the right to equal dignity for all human beings; imprescriptible crimes, starting with crimes against humanity; and inalienable global public goods, starting with the quality of the climate and the equilibrium of the biosphere : these are all legal provisions which, interpreted in each national context, should make it possible to reconcile the universalism proclaimed by the UDHR and cultural diversity, described as " common heritage of humanity " by the 2005 Unesco Convention.

Making the holders of power accountable on a global scale would mean bringing together a number of scattered mechanisms, some of which target inter-State responsibility (International Court of Justice, WTO), others the responsibility of States towards individuals, whether natural or legal persons (human rights courts, investment arbitration bodies), and still others individuals (international criminal justice). More rarely, but the question is now being asked, legal responsibility may concern transnational corporations (national jurisdictions with little motivation or effectiveness), international organizations, international experts or non-governmental organizations. Anticipating risks is a matter of introducing long-term measures (peace " durable ", development " durable ", protection of generations " futures "). Recently incorporated into the legal sphere, they seem to accompany fears that are shifting both in space, from local to global risks, and in time, from the prevention of proven risks to precaution in the face of uncertain risks (precautionary principle). The challenge is to combine time and not sacrifice the present to the future, or forget the past. Thus the concept of " sustainable development ", which postulates a synergy between the present (right to development) and the future (environmental protection), must also take account of the past : development " sustainable " is not always equitable.

Without claiming an omnipresent right that would encroach on the role of political and economic powers - on the contrary, the risk of legal fundamentalism is repeatedly denounced -, these works attempt to illustrate, in the fields explored, the many possibilities offered by the " imaginative forces of law ".

5. Research in progress : " Towards a universalizable jus commune ? "

As an extension of the research carried out within the " networks ID " (three research networks, Franco-American, Franco-Brazilian, Franco-Chinese, bringing together academics, constitutional judges and international judges, diplomats, to study the internationalization of law), since 2016 we have been engaged in a new research program. Conceived as part of a partnership with the Institut de sciences juridiques et philosophiques de Paris 1 and the Charles Léopold Mayer Foundation, this program could develop with other institutions, such as Taiwan's Academia Sinisa, which is launching research on " Hybrid Legal Regimes ". The aim is to sketch out, in the light of collective memories of the past and present, the conditions of validity of a future common law with a global vocation. Our starting point is a dynamic hypothesis that sees common law practices as transformative processes that bring together different legal systems without merging them. These processes have developed at different times and in different parts of the world. Their reappearance in fragments in the wake of globalization suggests the possibility of a common law with a global vocation, if not universal, at least " universalizable ". The aim is threefold : to shed light on the notion of common law through a historical approach ; to describe the emergence of fragments of a global common law at a time of globalization ; to outline the conditions for a future common law " universalisable ". Following a preparatory meeting in May 2016, a research launch seminar (workshop) was held in April 2017 to explore the first two objectives. The third objective will then be addressed with a view to publication in 2018.