Post Scriptum to Law Making in a Global World: From Human Rights to a Law of Mankind

• Author: Olivier Moréteau
• Position: Professor of Law, Russell B. Long Eminent Scholars Academic Chair
• Pages: 1223-1231

Professor of Law, Russell B. Long Eminent Scholars Academic Chair, Director of the Center of Civil Law Studies, Paul M. Hebert Law Center, Louisiana State University; Directeur honoraire de l'Institut de Droit Compar Edouard Lambert, Universit Jean Moulin, Lyon, France. The author thanks Paul R. Baier, Alexander J. Mijalis, Marie-Antoinette Morteau, Agustn Parise, Robert Pascal, Jaap Spier, and Jacques Vanderlinden for their comments and editing.

The following thoughts, written shortly after one and a half days of brainstorming on "Law Making in a Global World," are an invitation to move one step further, featuring a utopia that could become the topic of a forthcoming symposium.

A law of mankind? The very idea seems to contradict the pluralistic perspective that emerges from the symposium, especially from the presentations made by Roderick Macdonald and Jacques Vanderlinden. It must be clear to the reader that the author of this Post Scriptum fully endorses a pluralistic legal approach based on the local experience of a community and, to some extent, on the experience and aspirations of individuals, as long as it does not deny or infringe on the public good, the spiritual or philosophical values necessary for the survival of the group. With very rare exceptions, no individual may survive and flourish outside a community.

Several contributors to the symposium made it clear that the local and the individual must not be neglected but promoted and protected against a Western self-proclaimed global law. Here, in a nutshell, are my views on Western ethnocentrism:

1. One must beware not to impose an exogenous Western model to people who live under different customs and a different view of what we call legal order. Let us first check with them to determine whether they really need what may look essential to us.¹

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2. One should not be fooled into believing that the fact that the most populated nation on earth adopts the Western model of law making, a process brilliantly described by Volker Behr, means the abandonment of a multi-millennial model of authoritarian domination. The Chinese culture deeply rejects and despises the Western model of justice. The present "Westernization" is a makeshift screen; we should rather work at understanding the inner rules of the emerging superpower and the traditions of its people.

I New Challenges

The idea of a law of mankind may be a global reaction to globalization itself, to curb some of its most threatening effects. I am not sure it may cure poverty, the huge problem pointed out by Stathis Banakas, but it may help to not make things worse. It may be a way of resurrecting a law of peoples, without denying what is meant to remain particular and local. The individual and the local would not be denied if the law of mankind was put in the hands of the people rather than large scale supranational organizations.

The Romans already distinguished the jus civile (civil law) from a jus gentium (a law of the peoples, based on principles recognized by most nations). Grotius later developed the concept of jus gentium as an idea of right order to which national states should conform. Unfortunately, the concept of national sovereignty became too strong, hindering the development of international law, both in its public and private dimensions. Some truly universal rules may develop today, under the supervision of the United Nations, the World Trade Organization, and other agencies. Sometimes they twist the neck of national sovereignty, and oftentimes they are curbed by it.

State sovereignty is portrayed as a cumbersome obstacle to the free circulation of wealth, and tireless efforts are made to bypass it. Meanwhile, it is still used as a powerful screen to restrict liability and create immunities.

Not many areas of law managed to develop in a state-detached perspective, ignoring or bypassing sovereignty, at least partly. Page 1225 International trade law is one, and human rights law another. Historically, human rights have been protected by the courts, first in England and the common law systems, including the United States of America, and they have been proclaimed in a solemn manner in countries where they happened to be endangered, like France at the time of the French Revolution. The Dclaration des droits de l'homme et du citoyen (1789) served as a model for the Universal Declaration of Human Rights (1948), made in the context of the United Nations and for the European Convention on Human Rights (1951). It shared a community of inspiration with the U.S. Bill of Rights (1791), another product of the Age of Enlightenment, an age of universalism promoting an intellectual globalization.

The promotion of human rights strives to reconcile mankind with its future after the darkest moments of its history in the twentieth century. It is focused on the present, yet with unclear boundaries as to the future, given the challenges of bioethics. The legal community started giving part of the answer, which is largely in the hands of the courts, whenever it had to solve cutting-edge issues, such as those known under the names of wrongful birth, assisted suicide, and reproductive cloning, to name but a few.

Human rights are expected to take care of challenges...