by Mireille Delmas-Marty, translated by Naomi Norberg. Oxford and Portland, Oregon: Hart Publishing. 2009. 196pp. Paperback. £25.00/$45.00. ISBN: 9781841139906.Reviewed by Bogdan Iancu, Faculty of Political Science, University of Bucharest; Alexander von Humboldt Research Fellow, Faculty of Law, Humboldt University of Berlin. E-mail: bogdan.iancu [at] rewi.hu-berlin.de.
pp.231-241
Transnational pluralism, namely the coordination problems posed to traditional legal systems by the increasing interconnectedness of economic, social, and institutional processes, is the major legal challenge of our times. The magnitude of this challenge is evidenced by the fact that many transnational interactions give rather the impression of a cacophonic Babel: not pluralism but a plurality of clashing or overlapping voices.
Sometimes the cacophony results from untranslatability: the transnational legal interlocutors speak different systemic languages. For instance, the European Commission is mandated to constitutionally “civilize” prospective EU Member States, by ensuring that candidates conform to the so-called “political conditionality.” The Commission has to make proposals for reform and scrutinize progress during the accession process under an amorphous set of criteria, including anti-corruption measures, rule of law standards, consolidation of democracy, and minority rights. Such problems (democracy and rule of law reforms) are difficult questions of value, enmeshed in local context. The Commission is, however, a bureaucratic structure remotely located in Brussels. Like all bureaucracies, it has a strong institutional bias towards the reduction of value imponderables and context complexity to questions of output, i.e., simplified and ostensibly quantifiable policy imperatives. The Commission undertook for example to remedy the defects of the judicial organization and the corruption problems of Romania by urging the creation of an independent judicial government (as a guarantee of “judicial independence”), an independent anti-corruption prosecutor’s office, and an independent integrity agency (to ensure impartiality). To make an entire judiciary politically autonomous is an instantiation of the principle of judicial independence only in a grotesque and rudimentary way and, shortly afterwards, political corruptibility of the judiciary was exchanged for corporatist judicial corruption. To view a political system as corrupt and expect that the solution would reside in colonizing it at the fringes with a couple of politically autonomous institutions is a particularly naive and superficial reform strategy. The anti-corruption agencies were soon reduced to a relatively inconsequential role by the local system. When corruption indictments were quashed or stalled in the courts, mired in procedural squabbles and objections of unconstitutionality, the Commission started accusing the local judiciary of a [*232] lack of “corruption awareness.” Such accusations are of course absurd, since the judiciary cannot respond in any way to output imperatives; it is not designed to be either corruption aware or unaware. The policy-related shortcomings of a judicial system can only be addressed successfully if they are properly “translated” into a legal code. The predilection for exporting politically autonomous administrative institutions reflects in equal degrees irresolution in face of contextual and conceptual complexity and the institutional tunnel vision of the European Commission (itself an “independent agency”). But the situation as such, i.e. the fact that a bureaucracy is entrusted with staggering systemic decisions which it is institutionally unsuited to make, is epiphenomenal. It reflects deeper structural discontinuities, arguably resulting from the uncontrolled growth of the EC/EU, which are therefore also, in their own right, pathologies of transnational pluralism.
Often the cacophony is a result of systemic unassailability. Even if the transnational dialogue is carried out by judicatures, in the language of law and rights, insurmountable problems of coordination can arise. This is apparent in the ambivalent Europe-related decisions of national constitutional courts or in the disconnect between the rights-related decisions of national constitutional courts and, respectively, the European Court of Human Rights (ECtHR). The latter issue, for instance, was brought to the fore by the heated public and legal debate in Germany around the “Görgülü Case.” Görgülü, a Turkish citizen living in Germany, sought to gain custody of and access to his child, born out of wedlock and given up for adoption by his mother without the father´s knowledge. After a protracted legal battle, Mr. Görgülü obtained a ECtHR decision in his favor, stating that his rights under Article 8 of the European Convention on Human Rights (ECHR) (respect for private and family life) had been violated. But his renewed attempt to seek an injunction granting him access rights based on the Strasbourg ruling was rejected on appeal by a German Higher Regional Court, on the grounds that Germany the country was bound by the Strasbourg judgment, not German jurisdictions. Görgülü subsequently made a constitutional complaint against the Higher Regional Court ruling. At the end of this jurisdictional saga, the Constitutional Court quashed the decision of the Higher Regional Court and referred the case back to another panel. However, in doing so, while it stressed the obligation of all German courts of general jurisdiction to “take into consideration” decisions of the ECtHR, the German Constitutional Court insisted repeatedly that the Basic Law rejects automatic subjection to “foreign sovereign acts” and that there is a constitutional limit to the constitutional openness towards international law (see Hartwig 2005, Mayer-Ladewig and Petzold 2005). The general problem is not just a positivistic matter of technical legal coordination (e.g., concerning the relative legal validity of the ECHR in a given constitutional order: that of a national federal law (Germany); constitutional status (Austria); superior status unless the national constitution or legislation comprise more favourable human rights guarantees (Romania)). It is also, and perhaps primarily, a matter of judicial methodology. Insofar as clashes of rights are at stake, they are resolved by means [*233] of proportionality and balancing. Under these circumstances, there is in case of inter-jurisdictional conflict no principled reason why the decision of a supra- or international court should be accepted by its national counterparts (or vice versa) as a form of more extensive protection of human rights. Since there is nothing particularly objective and quantifiable about ranging values in relative hierarchies (e.g., privacy vs. speech), there are no means to measure the aggregations across equal value orders or compare the judicial decisions in terms of orders of priority. What results in the end is an irreducible “conflict of aspirations to precedence” (see Lübbe-Wolff 2006).
Outside relatively homogenous normative areas such as the Council of Europe or the EC/EU systems, such problems are exponentially compounded. Whoever would therefore manage to provide us with a conceptual key to the understanding and “ordering” of this haphazard plurality of discordant voices would be giving legal scholars and practitioners inestimable help. The intellectual feat of a succesful endeavor would readily compare with Max Weber´s analysis of legal rationality or Luhmann’s work on law as an operatively closed social system. The reader seizes upon Professor Mireille Delmas-Marty´s new book, ORDERING PLURALISM: A CONCEPTUAL ANALYSIS FOR UNDERSTANDING THE TRANSNATIONAL LEGAL WORLD, with great hopes and expectations.
Delmas-Marty looks for a middle way of accommodating numerical plurality into true pluralism, while avoiding the dangers at both ends of the spectrum: parochialism (what she calls the “pluralism of separation”) and, respectively, utopian or hegemonic unity. To become pluralism, plurality needs “subjectivity--the face of the other” (p.8). Since such transnational legal inter-subjectivity needs to be guaranteed in order to resist totalization tendencies, law ought to become supra-national. International law, we are told, by simply postulating the recognition of the other, “is silent in the face of totalisation, whether totalisation stems from globalization-related phenomena or from one system´s hegemonic extension” (p.9).
The first part of the book describes processes of transsystemic interaction, ranged progressively in order of magnitude and intensity. Using the term “ensemble” instead of “system” is recommended, since the former “[is] more neutral [and] takes into account currently forming ensembles that are too changing and unstable to constitute true legal systems” (p.17). A first type of interaction is the coordination by judicial cross-reference. Delmas-Marty describes judicial dialogues with respect to the death penalty as an example of successful judicial coordination, yet concludes that judicial cross-referencing alone is ultimately unable to guarantee pluralism. It depends on “benevolence” and follows therefore an unpredictable and disordered path. Since this type of horizontal transnational interaction is “necessary but insufficient,” ordered pluralism must become “verticalised.” The first type of vertical pluralist interaction is harmonization by approximation. Harmonization presupposes hierarchy, while approximation makes the promise of pluralism, by allowing national diversity [*234] to subsist within a supra-national framework. Successful processes of harmonization are exemplified through the EU law practice regarding the principle of subsidiarity (according to which the Community, outside its areas of exclusive competence, shall take action only if the objective cannot be more successfully achieved at Member State level) and that of the margin of appreciation in the Council of Europe law (a concept developed by the ECtHR to vary the application of the ECHR requirements with respect to the specific signatory states). The practice of the ECtHR with respect to the sensible issue of moral and religious diversity is briefly reviewed. The author acknowledges a measure of adhocery in the Strasbourg decisions but concludes that apparent discordances can be expected in open legal systems that instantiate a “vision of law that is transversal rather than marginal or pyramidal” (p.57). Concepts such as “margin of appreciation” operate with “fuzzy logic” and “[in] fuzzy logic a proposition may be true to varying degrees” (p.56). Considering the process of harmonization of legal systems still incomplete and unsatisfactory (the “ensembles” draw closer but remain still distinct), Delmas-Marty embarks upon the review of a third, and most ambitious, process of ensuring pluralism, namely unification by hybridisation. Unification by hybridisation would avoid the hegemonic characteristics of transplanting wholesale a legal system. Delmas-Marty pauses to condemn the well-entrenched presumptuousnes of assuming that only common and civil law would be competing with each other. A legal systems world map by the University of Ottawa is thus praised for acknowledging wider diversity (three other groups are evidenced on it, Chinese, Muslim, and customary laws, respectively). A CIA contemporaneous map is castigated (only two legal systems geographically itemized on it, the rest of the world is left uncolored, a white desert supposedly up for grabs) for hegemonically nourishing the fears of “an Americanisation of law” (pp.61-62). A successful unification by hybridisation would have to combine principles and rules of different systems cohesively, relying on a common but autonomous conceptual grammar. This grammar would be reconciling and transcending both the respective systemic presuppositions and the different demands posed by the tasks at hand (e.g., human rights and criminal justice, in international criminal law). The mixed procedural rules used by international criminal tribunals (ICTY, ICTR, ICC), combining accusatorial and inquisitorial elements, are presented as an example of relatively successful pluralism. But Delmas-Marty stresses the very high demands raised by this kind of ordered pluralism. Unification should be for the foreseeable future complemented by coordination and harmonization.
Parts 2 and 3 are symmetrical, describing the space and time preconditions of ordering pluralism. Pluralism is said to be more easily achievable at the regional level. Europe, “one of the rare regions to have simultaneously moved towards economic . . . and ethical integration” (p.91) would evidence the possibility to balance contrary trends (economy and rights, security and rights). Stabilization is said to be achieved in Europe by the bipolar structure and through countervailing balancing by the two supranational courts, ECtHR and the European Court of Justice. Contrariwise, [*235] at the international level predominate the fragmentation of patterns of cooperation and inchoate, tentative, haphazard responses to globalization. The dominant trend is the extension of trade and the privatisation of certain global legal procedures, for instance by the granting of transnational investors a public international law subject status (pp.102-104). Deregulation, economic liberalisation, and privatisation have however no counterpoise at the global level. There is no global human rights court, no unified response to globalized risks (e.g., the vagaries of Kyoto implementation) and the global approach to human rights is imbalanced. This latter evil will allegedly persist as long as norms will be adopted without regard to the universality of values (p.111) and rights (now conceptually and legally split between the two Covenants) shall not be reunited. Professor Delmas-Marty is hopeful though: “If the compass constituted by the Universal Declaration of Human Rights was broken by separating rights into two categories, it should be possible to fix it by reuniting them and developing their use by judicialising remedies, and the Human Rights Council created in 2006 should be able to contribute” (p.112).
The following two chapters (Part 3) describe variations in the speed of transformations. Asynchrony is said to dominate the global evolution, where trade law (and thus the trade agenda) rushes forward at full steam, whereas human rights lag far behind. Polichrony is discussed in a subsequent chapter and advocated as a way of enhancing pluralism by allowing various speeds of integration within a normative area. Translated into spatial terms, polichrony – variation of speeds of integration – becomes “variable geometry” – variation of levels of integration among the subsystems of a given “ensemble.” Several practices and mechanisms of achieving polichrony are assessed: “enhanced cooperation” in the EU system, “common but differentiated responsibilities” under the Kyoto Protocol, “differential treatment” for developing countries in WTO law. Delmas-Marty concludes the discussion on polichrony by cautioning that the downside to speed flexibility is the danger of it becoming an “à la carte” menu and thus a recipe for disintegration.
The book is informative, replete with interesting insights, and builds on the flow of an elegant argument. The style is alert and the translation excellent, apart from the avoidable inconveniences resulting from translating into English translations into French of the German originals (e.g., “Emmanuel Kant´s cosmopolitism” [sic!] at p.4). This volume constitutes an apposite introduction to the problems confronting the transnational legal world. It does not, however, fully meet the promise made to us by its title. Quite a lot needs to be added and not a little taken out for it to become A CONCEPTUAL ANALYSIS FOR UNDERSTANDING THE TRANSNATIONAL LEGAL WORLD.
It is not always clear whether and when Professor Delmas-Marty seeks a conceptual framework for understanding pluralism (an enterprise which requires dispassionate observation, distance from the phenomena, always weighing the advantages and disadvantages of the various trends and mechanisms) or offers a plea for global pluralism (advocacy scholarship has a different [*236] task, which allows a broader argumentative and terminological leeway, a relatively more impassioned tone, etc.).
For instance, various transnational cross-references relating to death penalty decisions and to reviews of extraditions to the United States of persons condemned to death are described as a successful example of judicial dialogue. She “hope[s] that the dialogue will continue” (p.32). Yet, most of the decisions parsed by Delmas-Marty seem more like the extension from court to court of a global aversion to the death penalty, at least judging from her case summaries: quick about-faces and superficially reasoned reversal of prior doctrine, often in spite of express textual provisions to the contrary. At page 33, we are told (in the context, this is apparently presented as a regretful hindrance to the global dialogical exercises) that “the dialogue is subject to judicial goodwill,” since the United States Supreme Court chooses the criteria and range of similarity of issues on which comparisons are to be based and “any acknowledgement of foreign norms is strictly optional.”
This goes to show the complexity of the problems at hand and the need to merge an appreciation of judicial cooperation by cross-reference with a clear methodological framework. Namely, in order to be able to argue that cross-referencing foreign law is good or bad, sufficient or not enough of to be had, one needs to explain what are the proper limits of this practice (unless one simply describes the legal-sociological implications and refrains from qualitative appreciations). From the fact that abolishing the death penalty is a positive trend and a praiseworthy endeavor, in the best Enlightenment tradition, it does not for instance necessarily follow that it should be done through the judicial back door. More importantly, is it not inevitable that limitations on the use of foreign legal materials have to be established by a supreme court, within a given “ensemble”? It is after all in the nature of dialogue that a rational filtering of interlocutors and arguments has to take place. This is true at least if one wants to carry out intelligible conversations and unless one partakes of the irksome but fairly common attitude that those who do not follow our opinion to the letter “are not listening to us.”
Unaccompanied by the responsibilty of providing a strict methodological guideline, transnational judicial dialogues can easily become fishing expeditions. If one will seek hard enough, some foreign authorities supporting or contradicting any given argument will eventually be found. Delmas-Marty rightly castigates the Feeney-Goodlatte resolution (a Congressional attempt to stop the use for foreign law by Supreme Court justices). Indeed, Justice Antonin Scalia himself, the poster child of pure-bred originalist American constitutionalism, condemned the resolution as abusive and misguided. But the general problems remain. When, for instance, Justice Stephen Breyer cites decisions of the Supreme Court of Zimbabwe (Zimbabwe is not a standard of liberalism and human rights, certainly not in comparison with the Justice´s own jurisdiction), there is a point to more closely accounting for the uses and abuses of cross referencing. [*237]
Such matters are not ancillary. The need to specify methodological constraints and limits of the practices identified as pluralist interactions goes to the crux of Delmas-Marty´s argument. To wit, the failure to do so results in ambiguities and imprecisions. She states for instance (exempla trahunt): “Though some United States Supreme Court judges cite UN HRC case law (. . .), the Supreme Court does not recognize the direct application of the ICCPR, even though it was ratified in 1992” (p.35). No reference is provided. If one uses the freely accessible, search-friendly Cornell Legal Information Institute database (search for “Human Rights Committee”), one obtains only two hits. On closer inspection, it appears that “some judges” are one judge, Justice Breyer, in his lone KNIGHT v. FLORIDA dissent from a denial of certiorari (parenthetically, also the place where the comparativist Justice sought inspiration in Zimbabwean jurisprudence). The second result is the opinion of the Court in ROPER v. SIMMONS, where Justice Anthony Kennedy refers to the Human Rights Committee of the Bar of England and Wales (but that is something else). Getting back to our excerpt, it is unclear why the US Supreme Court should cite the UN HRC at all. The views of the Human Rights Committee under the Optional Protocol (a protocol which the United States did not sign) can be called case-law only with a generous measure of terminological latitude and optimism. Furthermore, conversations must take into account the relative capacities of the conversationalists. In all relevant respects (screening of complaints, internal procedure, composition, tenures, etc.), the Committee is not a full-fledged jurisdiction, certainly not in any sense close to that in which the US Supreme Court is a court. What follows in the phrase is even more arcane. To state that “the Supreme Court does not recognize the direct application of the ICCPR, even though it was ratified in 1992” raises imprecision close to the point of incorrectness. True, the United States ratified the Convention in 1992 but it did so with five reservations, five understandings, and four declarations. Under these terms, according to authoritative doctrine (see Restatement (Third) of the Foreign Relations Law of the United States) and practice (see BUELL v. MITCHELL), the treaty is not self-executing. This is precisely why the Supreme Court does not (cannot) recognize its direct application. If the author should want to make a different claim, maybe that the treaty ought to be self-executing, perhaps because the extent of the reservations contradicts the purpose of the treaty (see Quigley 1992-1993), such a claim could perhaps be made but it would need to take a different form and would require more than apodictic statements.
A similar want of methodological clarifications undermines the argument of the chapter regarding harmonization by approximation. Professor Delmas-Marty places faith in the capacity of the principle of “margin of appreciation” to contribute to the preservation of pluralism within harmonization. But this principle does not really exist independently, either as an analytical judicial tool or as a matter of doctrinal application. It is an adjuvant or after-thought to proportionality and balancing, arguably allowing the court to apply double standards erratically, while pretending to do so against a sound and consistent background of justifications: [*238] what is good for, say, France is not necessarily good pour ces pays là-bas (for those countries out there). The reverse can also happen and is equally detrimental. What is good for France can be declared good for everyone, like in the case of VON HANNOVER v. GERMANY (where the court imposed a recognizably French standard of privacy protection on Germany) or the very recent judgment in LAUTSI v. ITALY. In the latter instance, the court in Strasbourg ordered the Italian state to pay the plaintiff, an atheist mother, €5000 damages for the suffering her children had to bear due to the presence of crucifixes in classrooms. This decision, which arguably goes over the mandate of the ECtHR to ensure a minimal standard of human rights protection across the signatories to the Convention, could have been nonetheless motivated strictly in a restrictive, context-specific manner (minors, public school, captive audience). Yet, the Second Section of the ECtHR extemporizes beyond the needs at hand, in a more didactic and general-theoretical way (alas, one could even say from the pulpit), about secularism, the general duty of state neutrality, and religious symbols in public spaces. It does so, moreover, in a manner redolent of the peculiarly French understanding of freedom of religion and state-church relationships (laïcité). The Court seems trapped in an eternal Catch-22 situation. Whereas balancing with the margin seems illegitimate because it is unpredictable and inconsistent, principled rationalizations are illegitimate because they are intrinsically reductive and hegemonic. Constitutionalism presupposes a number of clear principles but also a number of perfectly orthodox combinations or instantiations of those principles; to impose one model across constitutional systems does violence to reality and principles alike. This problematic is also important to Delmas-Marty´s argument (the general conceptual issue, to be sure; we cannot reproach the author an inability to predict the future). Namely, we should receive an account as to how balancing and the margin of appreciation can be preserved without seeming ad-hoc and whimsical and without collapsing in the other extreme (hegemonic universalism). Delmas-Marty avoids the issue by inviting the reader to make a wide leap of faith with her (the “fuzzy logic” which is logical but not in a binary sense, so that things are differently true “at different degrees”). The margin of appreciation has been subjected to much cogent criticism. For instance, Lord Lester of Herne Hill notoriously described it as “slippery and elusive as an eel . . . substitute for coherent legal analysis . . . standardless doctrine” (1995: 227). Much more than an apophatic credo quia absurdum is therefore required to justify and substantiate it theoretically. The author places trust upon “judicial transparency and discipline, reasoning and self-limitation” and calls this a methodological argument (p.58). Transparency aside (supposing that refers to the necessity to give clear and exhaustive reasons), the enumerated qualities are deontological appeals. Deontological appeals were methodological in wiser, olden times. In the Middle Ages for instance, judges were frequently cautioned to imitate (internalize) the virtues of the Heavenly Judge: prudence, kindness, moderation, patience, and even-handedness. In modern legal systems, one is forced to place more faith in external guarantees [*239] and structural constraints on judicial power.
The main assumption underlying the general treatment of spaces and speeds of pluralist legal interaction, namely that the compass of the Universal Declaraton of Human Rights was “broken” and the initial unity shattered, so that afterwards rights went their separate errant ways into the two International Covenants, is rather shaky. This Edenic-Arcadian image of a heavenly human rights bliss followed by a Fall by way of villainy and improvidence (“[T]he Serpent beguiled me, and I did eat.”) is a tad unawarranted. There were never green pastures and sweet harmony of human rights, thus we cannot return, with or without the help of the 2006 Human Rights Council, to a state of grace. The Universal Declaration was precisely that: a declaration. It is a cynical reflection of history upon our nature that human beings and states alike tend to agree to declare and proclaim quite a lot of things when no practical consequences are entailed thereby. When treaties (binding legal norms) came into the picture, the split between block visions of rights, reflecting a dichotomy extant in domestic constitutional and political systems, got the upper hand. This is as true nowadays as it was in the time of the Covenants. Agreeing on a cohesively unique (inextricable, as she prefers to call it) positive global vision of legally entrenched human rights is infinitely more laborious than agreeing on a clearer and more technical negative. In terms of both legal and institutional conceptualization and practical implications, removing obstacles to trade is much easier. This does not mean that we have to condone the accelerated trend towards trade and privatisation as such (just to note the differences). The former task requires consensus on an enforceable global vision of what human nature requires, down to all practical implications. In order for us to have a global human rights court, we would need a globally agreed upon anthropological profession of faith. Needless to say, the Orwellian or (depending on one´s mood) Huxleyan implications and anticipations could scare off a few readers. Besides, the shortcomings of the WTO system can and have already started to be remedied within the WTO system as such (as Professor Delmas-Marty also observes). It is arguable, in light of the above, whether trade and human rights ought to be or can be synchronized, in the proposed format.
This observation relates also to the initial reservation, i.e., the unclarity or ambiguity as to whether pluralism is i. nowadays inevitable but should be managed; ii. necessarily good due to the fact that and insofar as it can be adjusted to serve worthy purposes; or iii. good because it is pluralism and we should have ever more of it. On the one hand we are told that the state is on the way out, sovereignty likewise: no longer only one captain on board (one even wonders if there is a captain at all), legal orders form and disperse “like clouds on a windy day” (p.150). On the other hand, we are told that the drafters of the Constitutional Treaty “[gave up] too easily on their task on teaching complexity as was expected of them” (p.151). It is usually supposed that the task of constitution-making is not to teach complexity but to organize collective action and ensure freedom in a comprehensive and comprehensible manner. Besides, there is no need to [*240] worry, as European constitutional realities can be relied upon to supply more than enough complexity, in an “organic” way and at short intervals. The author goes on to suggest rather breezily (p.154) that the option of ratification by referendum of the said CT (which buried the treaty in France and the Netherlands) “permitted only a binary response . . . ill-suited to the complexity of the issues raised.” Hopefully this is not the beginning of a “fuzzy logic” approach to democracy and the one man, one vote rule. If a legal document is profferred as a constitution, there are excellent reasons why it should be submitted to referendum and thrown out by the voters if it is so convoluted that people cannot even begin to understand it. Moreover, given the splintered and factional nature of the global decisional processes and “civil society,” we should hold on for a while longer to concepts like “sovereignty” and “state.” They help rationalize collective action, preserve democracy, and thus the conditions of the possibility of collective agency and freedom (see Grimm 2009). There is a place for plurality-complexity and there is one for unity-simplicity of forms and concepts. Professor Delmas-Marty understands this as well; European hypercomplexity is rightly accused on page 164 (another proof of the already mentioned ambivalence). She should decide on a position between these opposing tendencies and tenets.
On a closing note, one finds at times a bit too much of the author in the author´s argument. The book begins and ends (first sentence, penultimate paragraph, Alpha and Omega) with self-references. A lot more follow in between: for example, on two consecutive pages, 160 and 161, three and respectively two works edited, authored or co-authored by Delmas-Marty are referred to in footnotes. There is relatively liberal use of the first person and expression of personal opinion, “I think”, “it seems to me”, “as I have discussed elsewhere” (p.61, no reference), “as I have said many times” (likewise, p.63), among others. Sometimes, the conceptual argument is interrupted by uncommon auto-biographical intermezzos: Professor Delmas-Marty talking to a cleric in Iran, in Beijing gazing pensively at the clouds engraved in the stone steps to the Summer Palace and the the Forbidden City, seeking inspiration in Paul Klee´s Bauhaus lectures, then deciding it was unsatisfactory and seeing inspiration anew in her extensive international committee work, “naïvely” suggesting to Mexican jurists, in the course of a conference, that Mexico could refuse to comply with clauses in bilateral criminal treaties with the US, should application of such treaties be deemed to violate the American Convention on Human Rights (they “laugh bitterly”; she can still hear their laughter, at p.90), and so forth. Informality has its uses but there can be too much of a good thing. This partly anecdotal self-referentiality cornucopia is epistemologically unorthodox and can be at times irritating. It adds nothing to the argument and little to the liveliness or overall stylistic qualities of the prose. It could have been done without, without any loss.
In spite of these few caveats, the argument is a very useful read and a welcome introduction to the topic. The readers will enjoy it and learn from it. Indeed, its flaws are emphasized by the still unused potential of its qualities. One should hope that Professor Delmas-Marty will draw in the future on the [*241] strength of her insights and her great knowledge and experience, and use this book as a stepping-stone towards a conceptual framework for understanding the transnational legal world, to the greater benefit of us all.
REFERENCES:
Grimm, Dieter. 2009. SOUVERÄNITÄT: HERKUNFT UND ZUKUNFT EINES SCHLÜSSELBEGRIFFS. Berlin: Berlin University Press.
Hartwig, Matthias. 2005. “Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights.” 6 (5) GERMAN LAW JOURNAL 869.
Lord Lester of Herne Hill, QC, 1995. “The European Convention on Human Rights in the New Architecture of Europe: General Report,” in PROCEEDINGS OF THE 8TH INTERNATIONAL COLLOQUY ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS.
Lübbe-Wolff, Gertrude. 2006.“ECHR and National Jurisdiction-The Görgülü Case.” HUMBOLDT FORUM RECHT 2006, Beitrag 12, Seite 1 available at http://www.humboldt-forum-recht.de/deutsch/12-2006/seite1.html
Meyer-Ladewig, Jens and Herbert Petzold. 2005. “Die Bindung Deutscher Gerichte an Urteile des EGMR. “NEUE JURISTISCHE WOCHENSCHRIFT (NEW LEGAL WEEKLY REVUE) 15.
Quigley, John. 1992-1993. “The International Covenant on Civil and Political Rights and the Supremacy Clause.” 42 DePAUL LAW REVIEW 1287.
CASE REFERENCES:
BESCHLUSS DES ZWEITEN SENATS AM BUNDESVERFASSUNGSGERICHT VOM 14.04.04-2 BvR 1481/04 (FALL GÖRGÜLÜ). (GERMANY)
BUELL v. MITCHELL, 274 F.3d 337 (6th Cir. 2001). (US)
KNIGHT v. FLORIDA, 528 U.S. 990 (1999).(US)
LAUTSI c. ITALY, App. No. 30814/06. (ECHR)
ROPER v. SIMMONS, 543 U.S. 551 (2005).
VON HANNOVER v. GERMANY, [2004] ECHR 294.
© Copyright 2010 by the author, Bogdan Iancu.
