Responsibility for just judgment in a transnational world
Transnational legal problems
Transnational phenomena such as climate crisis, migration, regulation of technology, and transborder economic interactions are characterized by (1) cross-border externalities; (2) the uncertain, complex and/or interconnected nature of transnational phenomena; and (3) multiple applicable normative orders (legal, moral, political and economic). In such a context, uncertainties about interpretation and legal meaning will inevitably arise. Uncertainties that, as we will see, are best dealt with by a postmodern ethics of just judgment.
As an example, let us consider the interpretive challenges posed by the global climate emergency. It exhibits the three characteristics of transnational phenomena noted above. First, environmental measures (or lack thereof) taken today in one state affect many others transnationally and trans-generationally. Second, we may assume that these transboundary effects will be strong and complex, but at the same time, it is uncertain exactly how action in one part of the system will affect the climate as a whole. Third, law is not the only provider of normative, regulatory norms: science, economics, morality and politics are all implicated in the problem of and response to climate crisis and provide different normative frameworks.
The inadequacy of traditional legal interpretation
Ronald Dworkin famously argued that for all questions of legal interpretation, the law will provide an answer – provided we interpret law as encompassing both rules and principles. If legal rules do not provide sufficient clarity, then one must turn to principles in order to find one’s right answer to the legal question. With the aid of these principles, the interpreter will be able to find the legal interpretation by: (1) finding the interpretation that best fits within the web of past decisions on the issue and the legal system as a whole; and (2) if multiple interpretations fit, choosing the interpretation that is more justified given the political morality – the normative justification – that underpins the law. You must find the ‘point’ of the legal practice and use this to interpret the law in conformity with this ‘point’.
Yet, in a transnational context, Dworkin’s ‘fit’ and ‘justification’ become difficult. The multiplicity of overlapping (legal) orders makes finding an interpretation with good ‘fit’ challenging. Even when our interpreter limits herself to her own domestic legal system, she is faced with the interactions between different domestic legal fields, as well as the interaction between those fields and the domestic implementation of international law. This increases the likelihood our interpreter will find herself confronted with multiple options for a fitting interpretation.
The problems intensify when we turn to Dworkin’s criterion of ‘justification’. Even if we accept that a coherent ‘point’ to law is a fiction that is necessary for interpretation to take place, it is not clear how we can legitimately choose one possible normative justification for law over others. One potentially-promising candidate for legitimacy is that the fictitious point we use in legal interpretation must be one that a particular political community has democratically chosen. In this case, we could say that while a transcendent, universal point to the law is merely fiction, it is a legitimate fictional point, so long as a people have democratically chosen that fictional point. However, this idea of legitimacy becomes problematic in a transnational context.
The democratic contradiction
According to the all-affected principle in democratic theory, a democratically legitimate decision is one in which all those affected by the decision were able to participate. Because transnational phenomena have such profound cross-border effects, this would mean that democratic legitimacy requires participation by all those people across multiple jurisdictions who are affected by the problem. Thus, a political morality found within one particular national context does not have the obvious democratic legitimacy for transnational issues that we might intuit it has for national issues.
Is the solution to this problem a higher-quality transnational democracy? Only partly. While devising modes of transnational democracy is important, this cannot solve the internal contradiction at the heart of democracy that is uncovered by transnational phenomena. Let me explain: Each moment of decision requires boundaries between those allowed to participate in decision-making and those not. In order for a decision to be democratic, the boundaries of decision-making must have been set democratically. However, the instituting moment of a political community lacks such democratic legitimacy for the very reason that it was not preceded by a democratic decision on who to include and who to exclude in the political community. Democratic decisions are always haunted by a partial lack of democratic legitimacy, something even a transnational democracy would be faced with.
Post-modern ethics of just judgment
In the midst of this democratic contradiction, we return to the question: how is our interpreter to justly decide on legal meaning? I propose that post-modern philosopher Jacques Derrida, can point the way forward. According to Derrida, ‘meaning’ is inherently diffuse, contested and non-coherent. Indeed, he emphasizes that any perceived consensus on the meaning of a text or practice is the result of an exclusion of other meanings, an exclusion that lacks any foundational legitimacy.
Derrida instructs our interpreter to face the fiction of a coherent ‘point’ to law and democracy’s contradictions head on. Our interpreter must acknowledge the lack of final legitimacy for her decision. She must recognize that no matter how well-considered her decision is, it always risks injustice. Once she has acknowledged this, she can strive to take responsibility for it by holding this risk ever-present in mind, as part of a constant self-questioning.
Responsibility for the Ever-Present Risk of Injustice
I propose that our interpreter must engage in the following two moves in order to take such responsibility. First, she must maintain a process of decision-making that allows input to the interpretive practice from all those potentially affected by it. This asks our interpreter to be open to those who are currently considered as falling outside the boundaries of the democratic decision-making process. In the case of climate crisis, this would be those people living outside of the jurisdiction of our decision-maker, who would nevertheless be affected by climate crisis. It would include future generations and would likely require the interpreter to place particular weight on the interests of those living in situations most vulnerable to the effects of climate crisis. Second, it requires a commitment to only making decisions that are open to future renegotiation of the boundaries that are inevitably set with this decision. Thus, while today’s decision may for example rule that humans who flee their home because of climate emergency are economic migrants, our decision-maker must avoid framing her decision in terms that would incapacitate those excluded from the legal protection of refugee law from contesting those boundaries in the future.
To be sure, this asks a lot of a decision-maker. In the midst of uncertainty, our interpreter must decide, and must do so in a way that does not deny the lack of final legitimacy but instead takes responsibility for it.
Dr. Laura M. Henderson is visiting fellow at the Law Department of the European University Institute and Assistant Professor of International Law and Human Rights at Utrecht University’s Netherlands Institute of Human Rights (SIM) and the Centre for Global Challenges. She is the 2018/2019 recipient of the EJLS (Young Scholars) General Article Prize. She co-leads an inter-disciplinary research group on Professional Ethical Judgment for Global Challenges.
An extended version of this article was previously posted on the blog of the Montaigne Centre for Rule of Law and Administration of Justice.