Internationalization of law: diversity, perplexity, complexity.


It is a real pleasure to visit with old friends like Justice Stephen Breyer--whom I wish to thank for his kind introduction--and to make new friends at this lovely event.

It is also a great honor to receive this recognition from WILIG, the Women in International Law Interest Group of the American Society of International Law, at this Annual Meeting devoted to "Confronting Complexity." I draw from this honor strong support for my own writings, which reflect the non-compartmentalized--some might even say non-academic--way that I look at today's legal world. As one of my colleagues put it in French, "Tu melanges tout"--"You mix everything up."

This is true. 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 at 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 reseaux, or study networks, that I have established have been named Reseaux 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 must introduce, into law itself, complexity. And that is why we need imagination.

Let me discuss each of these concepts in turn.


Internationalization of law generates more diversity everywhere in the sphere of justice. I will focus on two aspects: the diversity of legal orders and the diversity of global actors.

Diversity of Legal Orders

Diversity of legal orders is not new; however, it is transformed by reference to different levels of organization, different fields of legislation, and different speeds of evolution.

The different levels of organization include the national, regional, and global legal orders. The relationship among these orders is not linear. On the contrary, it is discontinuous and incomplete: there are many gaps between these levels of law.

By way of example, consider that there is a prosecutor at the global level--the Prosecutor of the International Criminal Court, for whom I have the privilege of serving as a Special Advisor. (1) And, of course, there are prosecutors at the national level. But there is no prosecutor at the regional level, even in Europe. A group of European Union experts of whom I was part wrote a proposal for an EU Prosecutor in our recommendations entitled Corpus Juris, and it is mentioned...

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