Universalizable Common Law

Description

From Pierre Calame:

"The construction of a universalizable common law is both essential and possible.

It is essential because globalization, i.e., the interdependence between societies and between humanity and the biosphere, is now irreversible, creating a community of destiny. But the world is now multipolar. The time has passed, as it did after the Second World War, when the West could consider its values and institutions as universal models.

This universalizable common law is also possible: we can highlight in the different legal models and the different models of governance a certain number of common principles that form the basis of a global but non-imperialist approach.

Law, as an autonomous discipline, has nothing universal or eternal about it, any more than our vision of the State, the national community, or democracy. Law is one of the facets of governance, which is the art of managing societies and guaranteeing their continuity by ensuring their internal cohesion, protecting them against external aggression, and maintaining a long-term balance between society and its natural environment, today between humanity and the biosphere. The legitimacy of the exercise of power is based on its capacity to effectively deal with these three imperatives in a spirit of justice, throughout time and space.

The challenges facing societies evolve over time. Governance has two seemingly contradictory imperatives: to be the foundation of society through its stability; and to adapt to challenges of a new nature or scope. As the evolution of the law itself illustrates, these two imperatives can be reconciled provided that the rules, designed to respond to known challenges, are brought up to the spirit of the rules, and then the spirit of the rules is applied to these new challenges. Whether it is a question of governance in general or of law in particular, the exercise is the same: using a comparative approach in time and space, we must look for invariants, of which the concrete forms we know are only a localized translation in time and space, and then look for the application of these invariants to new challenges.

If the legal systems we know are only a localized translation of general principles of governance, it is at the level of governance itself that we must identify these invariants in order to make them the basis for the invention of regulations on a global scale, including the common law to be designed.

Over the last few decades, I have applied my thinking to the search for the invariants of governance. It is this reflection that I propose to apply to the invention of a global governance and a common law. I have retained the following invariants: (1) governance implies the existence or emergence of a community; (2) governance must reflect the founding values of society; (3) in order to be legitimate, it must demonstrate its effective capacity to assume the three objectives of societal sustainability; and (4) it must reconcile unity and diversity as well as possible.

Governance implies the emergence of a community, in this case a global community of destiny, where history has led us to pretend that the "natural communities" are national communities, of which the State is both the guardian and the incarnation. This is why Georges Berthoin, former director of Jean Monnet's cabinet in the European Coal and Steel Community, described the UN as a "union of rulers." This also means that what we call world law today is in reality only an inter-national law, governing relations between states.

The absence of a real lived community is a real obstacle, even at the level of the European Union: common institutions are not enough to create the awareness of a community of destiny. It is therefore necessary to go beyond inter-state relations in order to set up real "citizen instituting processes" involving a great diversity of actors discovering together the community of their destinies and the challenges to be taken up, which are masked by the confrontation between divergent "national interests". This institution of community is possible today by combining deliberative democracy and modern means of communication. Global regulations do not imply "world government" in the sense that we understand it on a national scale, but a world constitution and system of regulations of which common law is a pillar.

Community and shared values are two sides of the same coin. Anthropology shows us that responsibility is the universal value: there is a community if and only if each of its members feels accountable for the impact of his or her actions on all the other members, human or non-human, of the community. It is therefore on responsibility that the future common law must be based. It is at the heart of any legal system, but with a definition inherited from history that limits its scope.

We must therefore assume a metamorphosis of responsibility in order to put it on the scale of the new interdependencies, by exploring the new modalities according to six dimensions, which I have described in detail in the book Metamorphoses of Responsibility and Social Contract (2020): (1) objective (impact) vs. subjective (intention) responsibility; limited vs. unlimited in time and space in impact; individual vs. collective; past and certain vs. future and unpredictable in impact; limited to human beings in impact vs. extending to the full biosphere; obligations of means vs. obligations of result. It is easy to see that for each of these six dimensions, our legal definition of responsibility is close to the first term of the alternative and that the responsibility to be conceived and translated into world law is close to the second term. It is today our limited definition of the responsibility of actors and the insistence on rights rather than responsibilities that ultimately produces a global society ... with unlimited irresponsibility. The metamorphosis therefore leads to a foundation for common law: the Universal Declaration of Human Responsibilities. With the Alliance for Responsible and Sustainable Societies, I have proposed a first draft . It should have the same scope as the Universal Declaration of Human Rights and benefit from the implementation methods invented since 1948 for human rights.

In order to reconcile unity and diversity in the implementation of this global right, it will be necessary to rely on the principles of multi-level governance and in particular on the principle of active subsidiarity, which consists of pooling experiences in order to draw up common guidelines whose implementation is then defined as closely as possible to each socio-professional or geo-cultural context."

(https://greattransition.org/gtn-discussions/an-earth-constitution-has-its-time-come#3494)

More information

This post draws on the author's chapter for the forthcoming book The Road Map for a Global Jus comune edited by Mireille Delmas Marty.