I want to begin my consideration of French and American perspectives on international law by addressing more generally the question of the relationship between legal culture and international law in order to broadly contextualize the descriptions of French and American perspectives on international law that are the subject of this Article. I would like to stress at the outset that it seems to me that there does not exist any global or cosmopolitan vision of international law, but, on the contrary, an inevitable multiplicity of particular national, regional, individual, and institutional visions. This is so because the actors in the international arena are conditioned by their own legal cultures and not by a cosmopolitan legal culture, which at present does not really exist. To be sure, there certainly exists a common language, which is international law itself, and in this sense a common embryonic culture, but this language is expressed through individual voices that are the products of particular, diverse legal cultures. This state of affairs is particularly striking today. It is reinforced by multiple pluralist and multicultural claims in the face of an increasingly global international society. It is also the result of a new understanding of law, which sees it as rooted in culture and language. We might say that at present both factual and doctrinal considerations are leading to a new awareness of the need to see international law in its historical and cultural contexts. This is, however, a complex situation with both advantages and disadvantages. As is clear from the current practice of international law, the existence of different legal cultures and of the different ways of envisioning international law, which results from these cultures, does not by any means foreclose the possibility of thinking about the bridges that might exist between cultures and about the points of convergence which might unite them around a common set of norms. By its very function, international law requires real interaction between different legal traditions by means of mutual reception of norms more or less freely agreed to. Furthermore, to recognize the diversity and a certain irreducibility of legal cultures can be quite positive, especially when it permits us to take into account the different cultural contexts in which international law exists, thus allowing us to better understand our divergences in interpretation and application of international law, as well as the more general problem of interpretation itself. But these diverse historical and cultural contexts within which international law is situated also present a risk, one with which we are presently confronted. In periods of great instability, like that which exists today, these differences are often used to reinforce antagonisms and interpretations in direct opposition to international law by creating conceptions of international law that are no longer national, but nationalist and/or imperialist. These diverse antagonisms and interpretations go so far as to produce a profound uncertainty in the secondary rules of the international system or even in its fundamental principles. As I will try to demonstrate, the simplified images that one has of the views of the other create a static Franco-American divide, which derives from our different legal traditions and which produces effects in practice. Also, these simplified images often reveal "the shortcomings of our own culture or our ignorance of it as well as the prejudices that we have toward the other," and they cannot avoid betraying the existence of a certain ambivalence in the positions taken on the two sides of the Atlantic. Moving towards a more dynamic understanding of legal cultures can compensate for the reductive aspect of a static presentation and allow us to evaluate more precisely their scope and effects. The ultimate question, which is present throughout this study, is the following: supposing that the static and dynamic descriptions of Franco-American differences are significant-whatever the fundamental substantive content of these differences actually is-can the Americans and the French transcend, at least in part, their own legal tradition of conceiving international law and their own cultural vision of international law to enter into a real inter-cultural dialogue? And if yes, to what degree and in what manner?
French and American Perspectives on International Law: Legal Cultures and International Law,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol58/iss2/4