Introduction
This lecture is the inevitably provisional evaluation of the course that I gave in 2011 and, more generally, of my teaching experience at the Collège de France. The cycle of lectures on the “internationalization of law” began the day after the launch of air strikes in Iraq ordered by George W. Bush, and it ended a week after Bin Laden’s execution. Thus, my discourse had to grow an increasingly tragic hue, tainted by a torn legal humanism, a myth starting to show cracks all over.
Having placed my lessons under the auspices of the goddess Astraea – the symbol of hope for the return to justice and peace among the humanists of the turbulent period of the European Renaissance – the choice to dedicate the last year to the topic “Sense and nonsense of legal humanism” was not coincidental. At the very moment when legal humanism is starting – at least partly – to become a reality through the expansion of human rights, the emergence of a humanitarian law and a criminal justice system with a universal vocation, its weaknesses and contradictions are also coming to light.
Weaknesses and contradictions of legal humanism
The opening of national borders to commodities does not prevent the springing of walls designed to block the circulation of human beings. Europe without frontiers closes like a fortress: it sets up camps for migrants and rediscovers Lombroso1Lombroso, the doctor renowned for his description of the “born delinquent”, is one of the leading figures of the 19th century Italian positivist school. His rejection of free will and his deterministic conception of crime, which replaces guilt with dangerousness and punishment with security measures, were later rehabilitated by the securitarian stances, in particular after the 9/11 attacks. to lock up people labelled as “dangerous”, regardless of the actual commission of crimes, in the name of a precautionary principle borrowed from hazardous materials regulations (see Delmas-Marty 20102Delmas-Marty, M. (2010) Libertés et sûreté dans un monde dangereux, Paris: Seuil, coll. “La couleur des idées”.). The right to safety (sûreté), renamed “right to security” (sécurité), justifies the most serious attacks on freedom, like the unlimited detention of the Guantanamo prisoners – who can be neither judged nor released – legitimizing even torture and inhuman and degrading treatment – as evidenced by the unbearable pictures taken at Abu Ghraïb, depicting prisoners forced to walk on all fours, leashed by laughing guards, and forced to eat by licking from a bowl. Humanitarian interventions turn into security drifts, if not warlike, while justice is taking the worrying form of targeted assassinations decided without trial by Heads of State.
And that’s where the humanity that seemed eternal, concluding the hominization process (biological evolution) that lasted millions of years, clearly appears to be a “humanity ‘in transit’” instead, in all the senses of this term. While retracing (during the seminar Hominization, humanization) about five thousand years of history of humanizations (ethical evolution) – from the great empires now buried under the sands of ancient Mesopotamia up to the futuristic dreams of transhumanists – we observed how ephemeral the passage on earth of every people is, and a fortiori of every human being. As Jean Baechler points out (Baechler 20103Baechler, J. (2010) Le Devenir, Paris: Hermann.), the great majority of these passengers of the wind – “les devenants” – disappear without a trace: “They are satisfied with having passed through existence”, what matters is only “the improbable and extraordinary fortune to have once existed”, to have taken part “in the splendor of the real”.
But what about humanity as a whole? Most ambitious, transhumanist movements elevate themselves to being the vehicle for the abandonment of the current form of humanity, a transitory, imperfect and, in essence, flawed form. Ironically, during the seminar, Marie-Angèle Hermitte schematically summarised their argument as follows: hominization failed and humanization is a failure. Hominization failed because our species is extremely imperfect from a biological point of view; and humanization’s failure is demonstrated by incessant violence and wars4Hermitte, M., Post-humanisation et/ou déshumanisation?, séminaire Hominisation, humanisation, 29 April 2011. Video available here..
According to them, it is necessary to try to improve our skills through techniques that will herald the transition to the era of the post-human, even at the risk of wiping out humanity. There is a sort of relentless coherence in this project which, in essence, dehumanizes to “post-humanize”, and de-socializes to make independent. However, it collides head-on with the legal humanism inherent to humanity that, as a matter of fact, has gradually emerged throughout history.
This observation may seem paradoxical because, at the very moment when philosophers such as Luc Ferry or Alain Renaut (Ferry, Renaut 1985; Renaut 2008) rediscover the importance of normative provisions (ranging from international human rights law to environmental law), the transhumanists claim to demonstrate the futility of any moral, religious or legal regulation. Since it is focused on post-hominization (in biological terms), transhumanism is uninterested in humanization in the ethical sense: biotechnologies will prevent any dysfunction, and the improvement of the human species will come exactly as that of the bovine species has. In her speech on artificial methods of procreation, Anne Fagot-Largeault highlighted that assisted reproductive technology already treats women as bovines5Fagot-Largeault, A., Les nouveaux modes de procréation, séminaire Hominisation, humanisation, 29 avril 2011. Video available here.. The digital monitoring systems will further contribute to this formatting of the human species.
Sensory standards and soft totalitarianism
Despite all of the above, in 2011 we were optimistic: we thought we would be able to solve all the problems. Today, we are less certain about it. Some jurists resort to the concept of “sensory standards” (normes sensorielles, Thibierge 2018) to identify the norms that manifestly apply, preventing any disobedience. These range from the acoustic signal urging us to fasten the seatbelts to the video-surveillance systems that will enable us, through sophisticated face-recognition systems, to photograph and identify in a matter of seconds a pedestrian crossing the street on a red light, so as to display immediately afterwards his/her large-format picture and name in the surrounding streets, before everyone’s eyes. How do we respond to these practices that aim to “shape minds, encourage adherence, enhance at least some sort of submission among the subjects through the imperceptible and constant administration of daily norms” (ibid.)? By crossing millions of individual data hoarded by the social networks and the billions of conversations recorded by the intelligence services, even democracies learn to merge societies of a permanent gaze and states of surveillance into what becomes a sort of soft totalitarianism, the more fearsome as it leverages on our endless urge to have access to everything, at any time, without any delay. Responding to narcissistic impulses even stronger than the sex or food drive, we “move from one platform and from one digital device to another like a mouse in a Skinner cage which, by squeezing levers, frantically searches for ever greater stimuli and satisfaction” (Harcourt 2020).
Globalization between humanization and hominization
By resigning ourselves to these transformations, we will run the risk of reducing the human being, turned into an interchangeable entity by that point, to a more homogeneous human species. Instead, it is still possible to preserve the interactions between the processes of hominization and humanization, and thus turn the contradictions of globalization into ambivalences.
Although it does increase the risks of dehumanization, globalization also opens up new perspectives on humanization: not so much through the creation of a global State (which, according to Kant, could lead to the worst possible despotisms) but, on the contrary, by encouraging the diversification of actors to re-balance the powers between States and infra and super-national communities, as well as between other state and non-state actors, be it economic or scientific or the civil society.
Thus, we discover that ethical values are not universal a priori, but can become “universalizable”6NdT: Universalisables in the original text, we chose to adhere to the term employed by Mireille Delmas-Marty to indicate what can become universal, or more universal, in the future. as international law comes into force at the crossroads of cultures and knowledges: for instance, with international criminal law, international human rights law, global public goods or global common goods.
Finally, we can note that the world order does not present itself as a hierarchical and unified model in which radical universalism is opposed to absolute sovereignty. On the contrary, the interactive and evolutionary practices that develop therein offer the possibility of a pluralistic and reciprocal humanization. Such a process presupposes harmonization without uniformity, by simple rapprochement.
Harmonizing differences
The harmonization process is dealt with in fields other than the strict legal field too. We find it in the works by writer, poet and renowned scholar of Islamic studies Abdewahab Meddeb, who has sought a method to define a “compatibility threshold” that would enable reconciling the “unreconcilable”. Such method, “mondiality” (mondialité, see Glissant 2005), a recent neologism, differs from uniformity since it recognizes differences and feeds on them, refusing standardization on a single hegemonic model, which was rejected already by Kant in his proposal of a cosmopolitan law at the time of the Enlightenment. Mondiality is at the same time unique – since it is not satisfied with juxtaposing differences and calls for a common ordering – and multiple – because it implies a certain pluralism. On the occasion of collective research on The paths to a universalizable Ius commune we discovered that mondiality, a pacific form of globalization, is not distant from “ordered pluralism” (Delmas-Marty 2006), that is, a pluralism that brings together differences without eliminating them, harmonizes diversity without destroying it and pluralizes the universal without replacing it with the relative: for there to be common there must remain differences, but they must become compatible.
It is thus remarkable that such an idea of compatibility has drawn the attention of a philosopher like Meddeb, who sees it as the means to “avoid uniformity without falling into the culturalist flaw that devotes an irrational cult to the specific” (Meddeb 2017).
International law, however, does not provide instructions for use, neither in the 1948 “universal” Declaration of Human Rights nor in the UNESCO Universal Declaration on Cultural Diversity adopted in 2001 (recalled by the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in 2005), wherein cultural diversity is declared “common heritage of humanity”. The jurist can, however, find some practical applications in the jurisprudence of the European Court of Human Rights, which recognizes that States have – in some fields, such as private life or the freedom of expression – a certain “national margin of appreciation”, inserted in 2013 in Protocol No. 15 amending the European Convention on Human Rights. The judges then define the evaluation criteria of a “compatibility threshold”.
A law in the making7NdT: “Un droit en devenir” in the original text, is a concept developed by Mireille Delmas-Marty to refer to “law that does not yet exist” (droit qui n’existe pas encore).
To illustrate our very general observation, we have identified five concrete examples that show the weaknesses of legal humanism before the challenges of globalization: migrations, social exclusion, environmental damages, the most serious international crimes (such as genocide and violations of human rights) and new technologies. We must now bear in mind that some of the excesses detected in the fields under scrutiny (such as the reinforced control of migration flows, the increase of social exclusion and environmental damage, the incessant commission of international crimes), as much as the ambivalence of new technologies, do stimulate a multitude of proposals and initiatives that tend to reposition the human element at the center of globalization.
We have chosen to investigate some of the processes of this complex creative ferment: the promotion of citizenship on several levels (we are citizens of our own countries but also, for those who live in this part of the planet, European citizens, as well as citizens of the world); the distribution of social and legal responsibility between States and transnational corporations; the reduction of tensions between justice and force in the attempt to build long-lasting peace; the creation of a link between the present and future generations. Lastly, speaking of technological innovations, we have analyzed innovation on a legal level – for example, by defining the right to be forgotten on the Internet, or even the right to silence in terms of the Internet of things.
These proposals or initiatives are often disconnected from each other. If developed jointly, they could instead pave the way, if certainly not for the restoration of the myth of legal humanism, which remains undoubtedly characteristic of its time and place of origin – Renaissance Europe – then at least for the humanization of globalization. As in all utopias, the risk is to sacrifice what “already is” for what is “yet to be”, which would mean losing past achievements in the name of an unlikely future. In fact, the processes of humanization can fail at any time – in most cases, justice remains at the service of force – or run aground: for example, the protection of migrant workers is enshrined in a Convention adopted in 1990 that, to date, has not been ratified yet by the countries that are immigration lands.
The risk of social regression, made even more serious by the total market, is not far, as isn’t afar the risk of falling behind or being overcome by the fast pace of innovations: no matter how hard we try to innovate legally, Internet law, for example, always lags behind the latest invention.
In other words, when a dynamic conception of law is adopted – in line with the expression “law in the making” –, it is essential not to lose the achievements of humanization processes, as explained to us with great clarity by Alain Supiot: “The difference between human and non-human beings is a very expensive achievement and should not be abandoned in the name of the protection of new centers of interest”8Supiot, A., Table ronde: le droit régulateur des tensions entre hominisation et humanisation?, séminaire Hominisation, humanisation, 29 avril 2011. Video available here.. To contribute to humanization, the law in the making is assigned a triple role: to resist, to responsibilize and to anticipate.
More precisely: to resist dehumanization, to responsibilize actors who hold global power and to anticipate future risks.
