“In my research, I mix up legal studies and other disciplines: in mathematics, I looked to the concept of “fuzzy logic” to help explain movements in legal pluralism. Meanwhile, looking at paintings by artists like Maria Elena Vieira da Silva, and listening to music by composers like my friend Pierre Boulez, I have found insights into the world order, and disorder. Still worse, I mix up different legal topics: criminal law, human rights law, the law of global public goods, environmental law, trade law, and labor law –also, laws relating to new technologies, such as the Internet and biomedicine. And I mix up different bodies of law (national, comparative, and international law), looking not only the separate categories but also, and more importantly, the ways that these bodies of law interact. “Interaction,” that is the key word.
According to my observations, the current interaction of these bodies and topics constitutes a new phenomenon, which I call the “internationalization of law.” The term is meant to describe a dynamic process, one that opens up legal systems and blurs the formerly entrenched borders between what is “internal” and what is “external.”
In French, the term “internationalisation du droit” is also known by its acronym, “ID.” And so the réseaux, or study networks, that I have established have been named Réseaux ID. (The Franco-American, Franco-Brazilian, and Franco-Chinese networks have met separately over the course of the last ten years; the first meeting of all three will take place April 10-12, 2012, in Paris.) But the term has a second, hidden meaning, given that “ID” also may stand for “imagination et droit.” In fact, the same is true in English –“internationalization of law” invites the acronym “IL,” which in turn may stand for “imagination and law.”
But how does international law develop? And why is imagination necessary?
My starting point, like that of the statement describing the theme of this annual meeting, is contemporary reality. I fully agree with that theme statement, as it describes this reality as “confoundingly complex” and “marked by rapidly evolving technologies, increasing global warming, rising population, and deepening our understanding of science and environment.” As an indirect way to examine the question “Is law capable of responding to the challenges of complexity?”, I propose three words that summarize –even sonorize, as if making a song– my answers. They are “diversity,” “perplexity,” and “complexity.” To grapple with diversity –as we must, in my view, because it is the best way to avoid hegemony– and to solve perplexity –a solution necessary because of the risks of disorder– we have to introduce, into law itself, complexity. And that is why we need imagination.”
(Delmas-Marty M., “Internationalization of Law: diversity, perplexity, complexity », American Journal of International Law, 2012.)
“This exercise—“select the ten most important works which have shaped my intellectual persona”—troubled me, at first, because my research was determined mainly by events. I studied law, primarily French positive law, in the ‘60s, and my first publications were textbooks. Though legal systems had begun to internationalize, we did not know it; no one told us, and we did not see. But I had opened my eyes by 1974, when France began both to “constitutionalize” by allowing parliamentarians to refer a law to the Conseil Constitutionnel for review and to “internationalize” by ratifying the European Convention on Human Rights. These processes destabilized the legal field formally (transforming the legal order’s hierarchical, static representation into an interactive, evolutionary one) and axiologically (announcing a new humanism by introducing human rights into the legal field).
International human rights instruments paved the way for an internationalization that also manifested in the economic area, for example with the European Common Market, Community, and Union. This movement accelerated at the end of the Cold War, when globalization strengthened the opposition between universalism and sovereigntism; the World Trade Organization and the International Criminal Court were created; and global risks (climatic or nuclear risks, for example) made interdepend- ence obvious, raising the issue of global governance. Though 9/11 spurred a retreat into nationalism, it did not stop this movement, which had induced me to develop my research in three areas: the legal techniques and logics affecting legal formalism (foreseeability); the ethical values concerning legal humanism (legitimacy); and the actors and powers involved in global governance (effectiveness).
To accomplish the impossible task this journal has set, I chose works (and more broadly authors) that have accompanied me in at least one of these areas. Some have helped me formulate questions, others have helped me find practical and/or theoretical answers, and still others have stimulated my imagination.”
(Delmas-Marty M., “10 × 10”, International Journal of Constitutional Law, Vol. 8, Issue 3, 1 July 2010, pp. 445-452.)