Mireille Delmas-Marty is the Professor of Comparative Legal Studies and Internationalisation of Law at the Collége de France. She is the author of Ordering Pluralism, A Conceptual Framework for Understanding the Transnational Legal World (Hart, 2009) and Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism (CUP, 2002).
I fully agree with the starting point: « International criminal law is legally plural, not a single unified body of norms ». ICL is an excellent example to illustrate what is called “Legal Pluralism” (LP), especially when considering « the complex dance between international law and domestic criminal law ». I also agree with the authors’ insight that this dance “takes place on at least five levels: (1) within national courts, trials involving international crimes often employ their own local criminal law standards rather than the international law equivalent; (2) international courts sometimes follow a particular national system in interpreting ICL rules; (3) international courts often survey then synthesize a wide selection of national rules to demonstrate widespread support for their favored approach; (4) at times, international statutes, treaties and national legislation define the same ICL concept differently and finally (5) judicial bodies that interpret ICL occasionally disagree amongst themselves about the interpretation of the same body of law”.
Before concluding that the dance is “improvised rather than choreographed”, I propose considering diverse observable dynamics as a “work in progress for a world in process,” leaving the question of “what might count as law” open. It seems to me that by choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies the rule of law with state law and makes the concept necessarily oxymoronic. To be “legal”, pluralism must be integrated into a state order which presupposes a structure that is more or less unified and hierarchical (unified because it is hierarchical) whereas pluralism implies (as traditional international law) the plurality of systems of law and their independence; it separates or juxtaposes different systems but does not organize them.
Beginning in the post-war period, globalization has opened a “post-modern” perspective which does not necessarily imply the disappearance of states, stimulating a somewhat paradoxical sovereign withdrawal, but increasing state interdependence. It leads to an unprecedented development of international law at supra and trans-state levels and even more surprisingly at the infra-state level. It has resulted in a whole that is plural, complex and evolving; a true challenge to the notion of the rule of law. To address such a challenge, the goal of bringing order to pluralism involves a choreography which combines three interacting processes attempting to reconcile universalism and pluralism.
Three interacting processes
One evokes, in increasing order of integration: horizontal coordination, for example, across “circular models” of one legislator to another, or judicial dialogue; harmonization, which brings differences together rather than abolishing them; and lastly unification as a fusion when differences are incompatible.
The process of coordination facilitates spontaneous and horizontal reconciliation of differing systems. It is without a doubt the most widely practiced process, from unilateral borrowing to cross-exchange, with examples of “cross fertilization”; but it is also the most uncertain since it relies on the good will of state actors.
The process of harmonization is more restrictive because of its reliance on a hierarchy between the national and international levels, which is itself complex because the hierarchy is flexible depending on its origins at the national or international level.
From the national level to the international level, an upward dynamic of reconciling differences demonstrates the importance of history and memory in illuminating comparative law. We can only understand it when using critiques of “ahistoricism of legal pluralism” from preceding authors as a starting point. Neglecting the historical dimension may have the effect of “condoning illegitimate or dysfunctional law”. But it is also necessary to take into account the ambivalence of comparative law, in the sense that it can be invoked equally to resist as to reconcile differences. As such, the example provided by the authors of Argentinian criminal procedure as being the “exception which confirms the rule” can also be understood as a reflection of this ambivalence.
It is also crucial to consider the downward dynamic that is at work from the international level to the national level. As discussed, international law is no longer simply inter-state and takes a supra-state status in its universal calling, but pluralism may reappear across diverse international law techniques allowing for “contextualising” the universal. From this point of view, international criminal law is particularly interesting. Even to demonstrate the notion of a unified principle such as crime “against humanity”, the requirement of “complementarity” can be reintroduced at the national level. We know that the International Criminal Court can only function competently in contexts where states in question lack the willingness or capacity to judge themselves. To exercise their competence, they must transpose international criminal law to domestic law and this transposition does not exclude a certain margin of national interpretation.
In noting that in both cases, whether ascendant or descendant, harmonization calls for “fuzzy logic”, cleaning up national margins precisely by replacing a requirement of conformity with one of compatibility. This softening is not always possible.
Whereas the third process, that of unification, solidifies the hierarchy of norms by imposing a single norm, but risks abolishing any hope of pluralism. Barring the renunciation of the unilateral process of transplantation – the pernicious effects of which have been demonstrated in colonialism –, the benefit of introducing a process of hybridization, which is multilateral and reciprocal. In fact, it is rare to see such a practice across all scales on the planet. Even at the level of the ICC, decisions that surround defining attempt, complicity and criminal procedure are informed directly by Western culture. As such, hybridization is often limited in procedure to combining accusatory and inquisitory models. On the other hand, crimes against humanity are broadened by notions such as apartheid, and criminal procedure can be enriched with alternative such as truth and reconciliation commissions. Even more broadly, international law can contribute to the duty of remembrance by creating a duty to anticipate the intentions of future generations (for example, by creating, across cultures, a crime of ecocide).
Reconciling universalism and pluralism
In a time when globalization reinforces interdependence from one end of the earth to the other, we must discuss the UNESCO Declaration of Cultural Diversity (Nov. 2001). This declaration (extended through a 2005 convention) made clear the tension between two apparently contradictory principles of international law: on one hand, the universality of values proclaimed by the “Universal” Declaration of the Rights of Man of 1948; and on the other, the principle of diversity of culture and religions, thus of pluralism, making up a “common heritage of humanity” per the UNESCO declaration. It is not an accident that this principle was posed in the days following September 11th 2001, which is sometimes characterized as a collision of cultures.
Some have interpreted the principle of diversity of “setting the fox among the chickens”. But neither the human rights, nor international sanctions against the most serious crimes are comparable to a chicken coup; rather to a winding and unpaved road at risk of becoming an impasse if it leads to a complete relativism where all values are equal. The 2005 Convention does not assert that all values are equal. It poses the principle of “equal dignity and respect of all cultures” but attempts to push back at the risk of relativism by affirming as a first principle the respect of the rights of man “as set out by the universal declaration or guaranteed by international law”.
While this objective is set out, neither the Universal Declaration of Human Rights nor the UNESCO convention provide a method for reconcile pluralism and universalism. Our hypothesis is that by rationalizing processes of coordination, harmonization and reciprocal hybridization, it is possible to put a coherent and diversified dynamic in place. In a moving world, this dynamic must serve not only to construct a “truly common law of humanity” based on the model of the rule of law, but also to avoid the pluralism which divides and universalism which leads to uniformity. We aim to create a path which can be called “ordering pluralism” or “contextualized universalism”, somewhere between the relative and the universal.
 See M. Delmas-Marty, « The ICC: a Work in Progress for a World in Process », in M. M. de Guzman and D. M. Amann, Arcs of Global Justice: Essays in Honour of William A. Schabas, Oxford University Press, 2018.
 M. Delmas-Marty, Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism, CUP, 2002. See also her current research project “Vers un jus commune universalisable?”: https://www.pantheonsorbonne.fr/unites-de-recherche/isjps/presentation/equipes-de-lisjps/equipe-de-droit-compare-et-internationalisation-du-droit/vers-un-jus-commune-universalisable/