Thursday August 28, 2014
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XXII Conference of Ambassadors
Lunch - August 28, 2014
"Influence through law"
Thursday August 28, 2014
Address by Jean-Marc Sauvé, Vice-President of the Council of State
Madam Director-General of Globalisation, Development and Partnerships,
Over ten years ago, the Council of State observed that our legal model was losing influence on a global scale. This assessment likely remains valid, despite several initiatives to reverse the situation, undertaken in particular by the Civil Law Initiative and the Institut des Hautes Etudes sur la Justice. However, it must also be reassessed in light of the increasing complexity of the centres exerting legal influence and of the diversification of the sources of law and legal actors, both here and among most of our major partners. The internationalisation of the law has, in fact, transformed the political and cultural issue of its export, which can no longer been seen as a one-way movement.
That being said, I shall focus on the major changes related to the current context of the globalisation of the law, as well as the tasks needed to be undertaken as a matter of priority.
I. The contemporary context of the globalisation of the law is characterized by several major changes.
A. First of all, the proliferation of forums within which international law is developed is blurring our view of the centres exerting legal influence, as we remain too focused on diplomatic conferences and on negotiations between governments. It is appropriate, ahead of said negotiations, to invest resolutely in the forums of development of the law, even when they are not state institutions.
B. Secondly, and in parallel, the diversification of sources of law is producing a shift away from conventional law, as we must turn our attention to the new forms of “soft law”, which is becoming increasingly important and over which common law countries do not have a monopoly. This calls for an organized presence of our country in the forums of formulation of good practices and other guiding standards, which eventually become binding legal texts.
C. Thirdly, the inflation of international law has combined with an intermingling and, to some extent, an integration of legal orders, especially within the framework of the European Union and of the European Convention on Human Rights. This intermingling may be voluntary, coordinated, and settled by conventions and a dialogue between judges, but can also be unilateral and offensive when the extraterritoriality of certain national laws is asserted.
D. Fourth, the current context is of course characterized by competition, by a rivalry between the common law and continental law systems and, even more bluntly, between the main national legal systems. We cannot be naïve about it. That being said, any form of binary opposition that pits two homogeneous blocs against each other will conceal the most significant phenomenon: an ongoing and increasing hybridisation of laws. We can either ignore and, in fine, put up with this hybridisation, or rather observe, understand, anticipate, and curb it in the interests of our country, our fellow citizens, and our businesses. Let’s make this very clear: it is not at all a question of submitting ourselves to what is sometimes portrayed as a “diktat” of European, and international or foreign public and private courts and institutions. Indeed, we cannot absolve ourselves of our responsibilities or of our constitutional or international obligations. However, by engaging in hybridisation, we have earned, and will continue to earn, room to manoeuvre and, as such, we may exercise a positive influence.
II. Our strategy of influence must therefore rely on promoting the comparative advantages of our law in a more pragmatic than ideological or systematic manner.
In addition to bilateral cooperation, which remains essential and must be targeted and structured in order to better respond to the respective needs of our partners, this strategy involves several tasks to be carried out as a matter of priority.
A. The first task requires an effort on our part to remain clear-sighted and to ensure the ability to adapt. Let us discover what works and what does not in our own system. What is valued and what is not. And let us be open to other legal techniques and concepts developed outside of France, whenever useful or necessary. Indeed, we cannot expect openness from others while refusing to show openness ourselves, in the context of the development of a common law.
It is therefore essential, before establishing a new rule and, in particular, when producing studies for our proposed bills, that we prepare a detailed assessment of the strengths and weaknesses of the existing law in light of a comparative law analysis, an exercise which unfortunately remains undervalued in our country. Our highest courts in turn have mutatis mutandis, the same duty to be aware of the responses provided by their counterparts to the questions before them. Indeed, there is nothing more dangerous than obsessive insulation.
B. The second task requires an effort to increase the visibility of our law.
The dissemination of our law is subject to linguistic and material accesbility. The translation – at least into English – of our most important legal texts – the main codes and major judgments – must be combined with the establishing of user-friendly digital spaces, rich in content. Fortunately, work on this project has already begun, in particular with the assistance of the Civil Law Initiative.
In addition, we will be all the more influential if the decisions of our courts and, more specifically, the major judgments, explain the solutions reached in greater detail and in language more easily accessible. Indeed, it is important to realize that the decisions of our courts generate interest amongst many readers around the world. However, our jurisdictional style, often laconic and “apodictic”, is not conducive to adequately understanding the reasons for the judgments of our courts. This finding alone should serve as sufficient justification to adapt.
C. Our third task is to implement a strategy of maintaining an active presence in the increasing number of international forums of legal reflexion and development.
Particular attention must be paid to our representation at international networks, associations, conferences, or publications, as this representation must be qualified, motivated, and ongoing. It is at these gatherings that the global legal community and, often, socio-professional players, come together; as such, that is where useful reciprocal exchanges may occur and where we must promote our legal vision and expertise. As a result, France must be systematically represented at these fora or events by quality contributors which, where necessary, must make solid or even pioneering contributions. This objective can only be achieved through the prior coordination between the various members of our own legal community (judges, academics, legal professionals, etc.). From experience, I can enumerate two pitfalls that we are too often confronted to: the absence of our country, i.e. the involuntary “empty chair”, or an unsuited or even redundant and cacophonous presence, which disqualifies us. To put it in sporting terms, we must “play as a team” by overcoming the splits that too often divide us and by “targeting” common positions to uphold whenever useful to do so, something which requires a minimum level of cooperation or coherence amongst us.
III. This strategy of influence, based on modesty, self-criticism, openness, the appreciation of our assets, and a demanding dialogue, is less flamboyant than the use of martial or purely defensive stances.
Yet, it is more realistic, more pragmatic, and is already achieving results.
Indeed, experience demonstrates that the views of the French legal community are requested and expected to be heard, and, when expressed in a spirit of cooperation, they are given due consideration. What is done at a bilateral and multilateral level (Francophone, European, or global) in the sole area of cooperation between French jurisdictions illustrates the benefit of their respective contributions to the development of a law tending to become common and in the resolution of problems encountered by their partners. Indeed, we share an increasing number of common values and principles, and are subject to the same challenges.
Such a cooperative attitude is not a sign of weakness, but rather an act of intelligence expected of us by our fellow citizens and businesses. As our law has a major European component, something which is enshrined in our Constitution itself, a strategy founded upon confrontation or cautious, inward-looking attitudes would bear more resemblance to an act of self-mutilation than to an effort of self-determination. Through Europe, we can also be more effective players in the globalisation of law and ward off the extraterritorial effects of certain national laws. That said, we must remain vigilant and not lose control over the legal integration process currently underway. We must engage in open and, if need be, firm dialogue with our interlocutors and partners, in order to ensure that said dialogue remains oriented towards protecting human rights and better serving the interests of both citizens and economic agents, without undermining our own vision and legitimate national interests.
In conclusion, I would like to emphasize that the Foreign Office and heads of mission must take part, at a bilateral or multilateral level, in this strategy of influence through the law that France needs to develop and implement, by promoting coordination and consistency or by giving rise to interventions or partnerships. As Vice-President of the Council of State, I am counting on your commitment and assistance and thank you for your support to this project from this point onwards.
Text written in collaboration with Mr. Stéphane Eustache, Administrative Court and Administrative Appeal Court member and chargé de mission reporting to the Vice-President of the Council of State.
The Council of State, L’influence internationale du droit français, a report published at the request of the Prime Minister, ed. La Documentation française, 2001.
The abovementioned report, p. 71 and pp. 105-106. Its apodictic style is necessary and universal, with the result that it need do no more than set out pithy principles.