In a society, different bodies of learning, philosophical ideas, everyday opinions, but also institutions, commercial practices and police activities, mores—all refer to a certain implicit knowledge (savoir) special to this society. This knowledge is profoundly different from the bodies of learning that one can find in scientific books, philosophical theories, and religious justifications, but it is what makes possible at a given moment the appearance of a theory, an opinion, a practice.
Michel Foucault, The Order of Things, in Foucault Live (Interviews, 1966-84) 1, 2 (John Johnston, trans., Sylvère Lotringer, ed., New York: Semiotext(e), 1989). For Foucault, as for us, savoir/connaisance has a certain virtue—it serves as a means to “avoid every problem concerning the anteriority of theory in relation to practice, and the inverse.” Id. As a consequence, it is possible to “deal with practices, institutions and theories on the same plane and according to the same isomorphism’s.” Id. This can serve as a means to the excavating (and thus the archeological referent)” the underlying knowledge (savoir) that makes them possible, the stratum of knowledge that constitutes them historically.” Id.
I have suggested that, at least as a matter of savoir, concepts of human dignity have begun to drive international law as foundational urtext. See Larry Catá Backer, Neo Colonialism in Civil Society Clothing or the Rise of Human Dignity as the First Supra National Principle of International Law?, Law at the End of the Day, May 13, 2008. While the meaning of the term is hardly free form doubt, the invocation of human dignity as a fetish against international domestic practices that annoy the important actors in the international community is becoming difficult to resist. So Burma has recently found out. Practice will begin to invest the concept with content or meaning that may eventually lead to its theorization and ultimately to its more precise formulation as international law. Already, there is evidence of a turn in implicit knowledge that suggests the possibility of the construction of institutions, practices and theories of intervention and policing of state activity grounded in human dignity. Burma and its cyclone might point us in that direction. Yet, it remains both fetish and proxy for the attainment of the desires of those who invoke it.
But what of the excavation of human dignity in private law? After all, in a sense, private law is central to the elaboration of a supra-national legal framework and a reflection of the convergence necessary to deepen global economic activity. It was with this in mind that I recently read Jan M. Smits’ excellent essay, Human Dignity and Uniform Law: An Unhappy Relationship, in Essays in Honor of Saúl Litvinoff 749-760 (Olivier Moréteau, Julio Romanach, and Alberto Zuppi, eds., Baton Rouge, LA: LSU Press, 2008). The trigger for the essay is a consideration of Saúl Litvinoff’s call to humanize law in the wake of globalization—if only to control its potential excesses. See SSRN version, id., at 2. That humanization might call for the incorporation of the concept of human dignity into private law, corresponding to the incorporation of the concept in national constitutional orders of public law. The question he poses follows: “to what extent [are] such concepts . . . suited for legal harmonization or, in other words, to what extent is there one universal idea of public policy or human dignity n private law.” Id. He argues that because the concept of human dignity is “inherently vague,” it follows that “the existence of competing notions of what it entails, making use of this concept will not lead to uniform outcomes in similar cases.” Id., at 10. As a consequence, he posits a “distinctive role” for human dignity—something like the canary in the mines—“to invoke it is a warning sign that the very conditions for a meaningful human life come into danger.” Id.
Smits arrives at his conclusion by way of a careful comparative analysis of the application of human dignity as a legal concept in private law. He starts by seeking common ground in the civil law concept of ordre public (id., at 3) and its corresponding notions in common law . (Id.). These notions, Smits correctly notes, have been expanded, and to some extent constitutionalized, in the jurisprudence of both civil and common law states in Europe and the Americas. Id., at 3-5. As he astutely notes, the most interesting aspect of this juridical movement, especially “this constitutionalization is not so much that specific fundamental rights are being invoked in private relationships, but that in defining what public policy means, more and more reference is made to ‘human dignity.’” Id., at 5.
But it is one thing to name a common principle and quite another to fill it with meaning. And harmonization in description and application is the objective. But it is on the rock of application that Smits’ search for a principled basis of harmonization founders. Actually four rocks. Smits looks for the harmonizing effects of application of human dignity in private law in four places: international contract law, the jurisprudence of the European Court of Justice, a representative case form the Human Rights Committee of the United Nations, and in uniform interpretations of the concept at the national level. Id., at 6. He puts his greatest hopes of harmonization at its most efficient plane—international contract law. But search as he might, he finds little taste for the project in either CISG or the Unidroit principles. Id., at 6-7. The reasoning is a biot circular—because there is no consensus at the national level there can be no consensus at the international level within a harmonized system of contract law. Yet there is a glimmer from out of the Principles of European Contract Law. That instrument adopted the traditional formulation of the European Court of Justice—to seek meaning in the fundamental principles recognized in the law of the Member States of the European Union. Id., at 6. Again, Smits notes the circularity and contradiction. Id., at 7. Universalism is the weaker for seeking its expression in some sort of consensus derived form application of principles of national law. I am less convinced that this is not both useful and viable (and has worked to some extent in fashioning some movement toward harmonization in public law), see Larry Catá Backer, "God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century," Mississippi Law Review, Vol. 27, 2008, but I take the point.
It is downhill from here if the object is evidence of institutional movement toward harmonization. The second line of inquiry takes Smits to the jurisprudence of the European Court of Justice. Id., at 7-8. Here again harmonization is hard to find. But the failure, I think, is perfectly reasonable given the traditional jurisprudence of that court. Harmonization is not yet possible for the reasons that CISG and Unidroit gave the concepts a wide berth—Europe is ready to embrace the concept but not yet ready to define it. As such, the European Court of Justice reverts to its standard reaction, one that is also common in the European Court of Human Rights. It waits. The euphemistic language, of course, is that of margin of appreciation or margin of discretion. See Larry Catá Backer, Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S., 7 Tulsa Comparative & International Law Journal 327 (2000). This comes as no surprise, and Smits notes this in his discussion. The Court has been sensitive to the national sensibilities it has read into the derogations for public order and morality written into the black letter of the free movement of goods, workers and the like. Id., at 8. Curiously, Smits does not discuss the usual consequence when there is impatience in a “margin of appreciation” context—a push for mandatory harmonization through rulemaking. But perhaps the absence of will on that score—and power—make this less viable than in other areas ripe for harmonization. Still, this is easily a principle that can be made a European rather than a national issue through legislation. That it hasn’t suggests the lack of will toward harmonization rather than a lack of capacity.
The third line of inquiry was my favorite and the most redolent with contradiction. Human dignity becomes complicated when the dignity of multiple actors may be differently affected. That is the morale of the inquiry into the “dwarf-tossing” case considered by the Human Rights Committee of the United Nations. Id., at 8. Indeed, there is a deep insight here that might be worth excavating in more depth. Public law tends toward a vertical element, especially in the construction of relationships between the state and its citizens. But private law tends to be horizontal. Human dignity, in tat context must mediate among actors whose relationship does not necessarily suggest hierarchy and whose relationships are voluntary (at least to an greater extent than between an individual and the state). In this context, it is less likely that human dignity is easy to apply in the marginal case. An imposition from above, in these cases, as Smits shows, tends to do violence to the horizontal relationship. As Smits notes, “The truth is that, at least among private parties, both these rights are expressions of what we consider to be just societal norms; we value both autonomy and human dignity.” Id., at 8. Smits suggests that the “simple reference to human dignity is not helpful here.” Id., at 9. But, it might be as useful to suggest that the simple reference to human dignity here is revealing of a change in the framework, the referents, within which behavior norms underlying contract performance will be understood.
The last line of inquiry is also disappointing for Smits. Looking at national law, Smits looks at the wrongful birth cases to evidence national incoherence. Id., at 9. The spirit is willing enough, as principle, but the body of the law does not respond. But absent an imposition from above, it is clear that these cases would evidence the sort of incoherence tat also characterizes cultural, political and social understanding of these issues. It is hard to look for legal harmonization in the context of application in which coherence is nowhere to be found outside of law. It is clear that human dignity concepts ought to apply. But the manner of that application is as yet unclear at every level. From this incoherence, Smits finds it impossible to extract law, much less concepts capable of harmonized application. Id., at 10.
He is right, of course. Human dignity is a concept in search of a unifying identity. Yet, it appears everyone is searching—individuals, institutions, courts, and those with authority in moral matters. For the moment that search must content itself with the aggregation of a multiplicity of form and application—even within national systems—like so many pearls of various shapes, sizes and density. Still, from these singularities, a useful ornament might still be fashioned, coherent enough for application. Convergence is possible even in the absence of harmonization. And the essentials are there—a general shift in the knowledge that human dignity somehow infects private as well as public law systems. The stage is set though the manner of its realization remains veiled for the moment. Thus, Smits’ suggestions penetrate connaisance without completely excavating the essence of the savoir he so well describes. What Smits so well reveals is the construction of savoir—a movement from one set of understandings giving rise to theorizes and applications, to another. In the search for a connaissance of human dignity, we have unearthed its foundation in a savoir that, through the actions Smits describes, appears to be slowly building toward a new understanding. That it appears in private law, as well as public law, is a testament to its rising power as a foundational principle, even if it is still deployed merely as legal fetish. Whatever the case, as Smits powerfully suggests, we will be speaking of human dignity in public and private law for a long time to come at all levels of governance.
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