TO CONCLUDE

even if the law in the making is characterized by a triple role – to resist, to responsibilize, to anticipate – these functions should not be put all at the same level. Resisting dehumanization recalls the traditional role of law: to establish prohibitions. On the contrary, transforming the concept of “responsibility” into a “dynamic process of responsibilization” and putting into practice anticipation processes entails resorting to what I like to call “the imaginative forces of law”, thus coming to identify a dynamic. However, the latter must never lead us to forget the inherently human limitedness, since our cognitive skills are not unlimited. Undoubtedly, they are insufficient. Paul Ricœur argued some years ago: insufficient to be able to truly control the “conflict between the foreseeable and desired effects and the innumerable totality of consequences of the action” (Ricœur 1995, pp. 68-69; English translation p. 31). We are unable to control everything. If law aspired to anticipate all the risks and protect from all the dangers, it would foster a culture of fear, thus also furthering the rise of authoritarian or even totalitarian regimes.

Well, such culture is relatively recent or, in any event, scarcely examined by Western historians, except for Jean Delumeau in his Histoire de la peur en Occident (Delumeau 1978). We could ask ourselves if fear became taboo while power was instead undertaking the task to reassure and protect, which, besides, is the title of another work by Jean Delumeau (Delumeau 1989).

By now, fear is not taboo anymore, it has become a form of governance, if not even a governing method. To protect adequately, it is necessary to put on alert. Everywhere, at any time, from nursery school and for life. In other words, the tolerance threshold has weakened. The ideal would be to neutralize all risks to get the illusion of mastering even the unpredictable. The explanation may lie in the fact that unpredictability has increased. However, I put forward this hypothesis with caution. If chance is nothing but the fortuitous coming together of a series of heterogeneous causes, we can assume that technological progress does not so much increase risks as precisely that random component instead. We can assume that technological progress makes progress more unpredictable because we witness the multiplication of interactions among various causes of natural or human origin; all of this is reinforced by the excessive power of technical means. But how do we reinvent new rituals that reassure and restore confidence in a destiny that is not necessarily tragic, then? How do we avoid resorting to the scapegoat mechanism again? In some way, that’s the role that was entrusted to the extra-judicial execution of Bin Laden.

We would like to escape the alternative between the dream of the super-human of the post-humanists on the one hand and the nightmare of the catastrophe of the environmental movements on the other. At this point, we cannot but think of the works by Hans Jonas (Jonas 1979, pp. 16, 424; English translation p. 176 and seq.). Scarred by the drifts he associated with what he called “Marxist utopianism in its close alliance with technology”, the philosopher will come to oppose the “responsibility principle” to the “principle of hope” of Ernst Bloch. Clearly, his heuristics of fear is not about fear for oneself. By identifying the dangers, Jonas appeals – or intends to do so – to the courage to take responsibility for future generations. In my opinion, however, fear does not replace hope: hope is “ready to seduce”, said Plato in Timaeus, nevertheless recognizing that it plays a role in the exercise of reason and the search for truth.

Perhaps it will be up to this law in the making – the real object of my research on the internationalization of law – to reconcile the two principles so that fear becomes solidarity in the face of risk and that responsibility does open up to hope.