Back to p. 1 – Empirical instruments

Axiological instruments

The axiological instruments imply reference to ethical values that, to be accepted as common, must find a balance between apparently opposing requirements (Delmas-Marty 2011). I will only cite the example of “sustainable development”, a currently widely used term, employed to anticipate environmental risks and in particular, but not only, to protect the climate from greenhouse gas emissions. Climate, as previously mentioned, is a public good that can logically be globalized, but from a practical perspective this can happen only if a balance is reached between environmental protection and the maintenance of development acceptable for all countries. It is evident that the interests of the emerging countries do not coincide with those of the industrialized countries.

The latter aim directly at sustainable development, while developing countries and emerging countries are primarily interested in economic development. From a prospective point of view, sustainable development presupposes that all countries commit to it, but it does not guarantee fair development. Fair development requires, in retrospect, to recognize that industrialized countries have a strong responsibility for the current emissions of greenhouse gases. In other words: anticipating, in this matter, means finding a balance between the past, present and future. It could be said that the same reasoning applies to lasting peace or, again, to “universalizable” human rights. This is a dynamic approach that, therefore, implies a balance that is also evolving; as such, it can cause legal insecurity which specifically results in a transfer of powers – the power of interpretation – to the judge. The latter, in fact, more than the legislator, puts into practice this search for balance between “prospective” and retrospective. Hence the importance of the method of reasoning and the need for instruments to adjust legal formalism not only to the diversity of the present world but also to the uncertainty of the future.

Formal instruments

Legal formalism was illustrated during the seminar Hominization, humanization by some scholars, among whom Alain Berthoz. Cognitive sciences demonstrate that the multiplicity of interpretations derives from the abilities of the human brain, which is already equipped with shared mechanisms of representation: the ability to change the point of view includes a set of psychological features, but it rests upon specific brain bases. During the seminar, we mainly focused on this ability, in light of its connection both with hominization and humanization. The Renaissance humanists, to name only them, preferred the form of dialogue to that of treaties. The attempt was to help break out of the binary logic, and to introduce a “logic of gradation” – which I no longer dare to call “logique floue” after the misadventures of having published, with a somewhat provocative title, Le Flou du droit (Delmas-Marty 1986), i.e., the works on the topic of the logic of gradation written by a research group jokingly calling themselves Les fous du flou¹NdT: The meaning of the pun is lost in the English language.. The misinterpretation between ordinary flou, synonymous with imprecision, and logical flou – which leads to the improvement of the legal norm by adapting it to the complexity of situations, and which allows appreciating the compatibility of behavior with the reference norm by placing the latter on a graduated proximity scale – made me more cautious. This method, far from leading to arbitrariness, forces the judge to clarify the meaning of the reference norm and the criteria for assessing the degree of proximity that guides the final decision, which is of a binary type (compatible or incompatible). By now I prefer to speak of the “logic of gradation” as a means of allowing the safeguarding of margins: national margins in space, but also of margins over time. Here again, humanization is at the crossroads of biological and cultural evolution.

From the point of view of legal techniques, the national margin of appreciation previously mentioned allows variations in terms of space even though, from a temporal point of view, international law invented the technique of common but differentiated responsibilities, which facilitates, especially in the field of climate change, a type of anticipation at different speeds. The schedule is not the same for industrialized, emerging and developing countries. It creates a space – the Kyoto space, as it is sometimes referred to – which is a multi-speed space – a polychronic phenomenon.

This is an answer, in the name of legal formalism, to the question “How to address the synergy between sustainable development and fair development?”.

The development will be sustainable thanks to the commitment of all countries; at the same time, it can be fair if the agenda allows more time for developing countries. We can also note that the uncertainty of risks does not automatically involve a lack of responsibility. We have the ability to anticipate, but we must not imagine it to be unlimited. In other words, anticipating must not lead to wanting to attribute all the risks to a single responsibility holder.