What if the pandemic was an unexpected opportunity to take a break from rampant globalisation? For the past twenty years or so, we have been experiencing almost permanent global crises: a security crisis with terrorist attacks, then shipwrecks of migrants, a financial crisis, a climate crisis with the disruption of the ecosystem, and finally the current health crisis. Faced with such an avalanche, human collectives have imperturbably continued along the same path. Now that they have brought themselves to a standstill in the face of a pandemic which is not the first, but which, for the first time, is immediately perceived as a total social fact on a planetary scale, are humans ready to change course to avoid collapse?

It is as if we have entered the doldrum, (1) that place in the middle of the ocean where opposing winds neutralise each other and paralyse ships, or fight each other and cause shipwreck. Security v. Freedom, Competition v. Cooperation, Exclusion v. Integration, Innovation v. Conservation, our societies seem to go round and round like weathervanes in the wind. Hence the incoherence of certain political choices, for example concerning the health services: dismantled a short time ago in the name of competitiveness; then praised, like heroes, for their cooperation in the “war” against the pandemic in the name of security. In turn, security, set up as a quasi-absolute right, suspends all rights and freedoms, starting with the freedom to come and go. Even the right to human dignity, which is legally “non-derogable”, is openly flouted when the dead are deprived of burial, while many of the living are discriminated against as a “population at risk”, or even “tracked” like dangerous products.

It is impossible to remain silent in the face of practices which, in order to preserve the survival of the species, would end up destroying what is proper to humanity. But what can we say, and above all, what can we do to put the brakes on this race that is leading our societies into the doldrums? We should take advantage of this unprecedented moment when dogmas as resistant as the absolute sovereignty of States, economic growth and self-regulation by the market, the security dogma of zero risk, or the anthropocentrism that places man at the centre of the Earth seem to be shaken.

Let us not take the wrong path. It is not a question of replacing a dogma with its opposite. The world after is not the opposite of the world before. It is a hyper-connected world, weakened by the power of the unpredictable. This is why the change of course must be a change of thought: we must renounce the certainties of dogmatic thought for the uncertainties of a dynamic thought, which evokes the “trembling thinking” because it oscillates from one wind to another, from one dogma to another. In fact, it is a thought in motion. Continuing the nautical metaphor, we could say that it ‘wobbles’, like the sails on a boat that ‘tacks’ to go upwind. In order to adapt to the unpredictable, dynamic thinking must remain modest. Acknowledging its mistakes instead of hiding them, it learns to correct them, by a kind of tinkering, adjustment and readjustment. This is the condition to try to take up the bet laid by Edouard Glissant “that it is possible to last and grow in the unpredictable.” (2)

Edouard Glissant; Image credit: ucla.ac.uk

Lasting through the unexpected

In the face of the unpredictable, we already have the instruments to "last", but we must learn to use them.

The first instrument is called interdependence. It was introduced into international law at the firstEarth Summit (Rio 1992): "The Earth, the home of humankind, forms a whole marked by its interdependence". But hardly anyone saw it. It then inspired a "Declaration of Interdependence" (which we drafted within the International Ethics Collegium around Michel Rocard, Milan Kucan, Ruth Dreyfus and Mary Robinson, with Stéphane Hessel, Fernando H. Cardoso, Edgar Morin, Peter Sloterdijk and others). We presented it in 2005 at the UN, but hardly anyone read it. We presented it again in 2018, shortly before Michel Rocard's death, to the UN General Secretariat, but nothing changed and when the virus arrived, we were stunned and, as it were, paralysed.

The preamble to the Paris Climate Agreement stresses "the global nature of the threats to the community of life on earth" and the resulting duty of cooperation for states. In addition, a draft 3rd Covenant on Human Rights and the Environment, stresses integrating indigenous peoples and the rights of nature. But there is an urgent need to open negotiations because the pandemic cruelly demonstrates the extent to which States, like human beings, have become interdependent, whether it is to obtain screening tests, medicines and vaccines, or even simple health protection masks. Yes, human interdependence is now an indisputable fact that should be imposed as a "watchword" and "guide our transition to the world of tomorrow." (3) However, the legal consequences must be drawn to avoid the denial of reality that many political leaders practice in the name of national sovereignty as in the recent example of Brazil.

A great deal of energy will still be needed to ensure that interdependencies, finally recognised, are transformed into genuine solidarity, the second instrument for lasting in the face of unforeseen circumstances. As Europe's current difficulties demonstrate, it is not enough to enshrine the principle of solidarity in the treaties to guarantee its effectiveness. And yet, making explicit the "common objectives" that underlie solidarity is already an important step that opens up the prospect of mutual fulfilment. This notion has also appeared on a global scale: first the eight "Millennium Development Goals", mainly focused on the fight against poverty, but still very vague (MDGs, UN General Secretariat, 2000); then the seventeen Sustainable Development Goals (SDGs, 2015). The method is becoming clearer with more specific, qualitative and quantitative objectives for the climate (Paris Agreement, 2015), and perhaps on the horizon of a future model treaty on migration ... and on pandemics.

However, to be effective, solidarity presupposes the legal responsibility of the most powerful actors, in other words, legal institution [un état de droit] that can be used against states. Of course, the creation of a world state is neither feasible nor desirable. On the other hand, it is feasible – and urgent – to transform the solitary sovereignty of states into joint sovereignty and their unlimited irresponsibility into "common but differentiated" responsibilities. In the absence of a global jurisdiction, national judges can already contribute to making states aware of their responsibilities.

In the end, the unpredictable calls for thinking without arrogance, but with confidence in the human adventure: "It is not the fear of perishing but the ambition to live that has thrown human beings onto the roads of the earth, the sea and the sky."

It would still be necessary to provide for the responsibility of non-state actors when they exercise global power, such as transnational companies (TNCs), but their "social and environmental responsibility" is a matter for soft law (a law that is fuzzy because it is imprecise, flabby because it is optional and flimsy because it is not sanctioned). The solidification in Hard Law could however come from national law when it extends the notion of social interest to certain forms of general interest (as in France, the 2017 law on the duty of vigilance of parent companies and ordering companies with regard to their subsidiaries and subcontractors, and the 2019 Pact law on Entreprises à Mission).

The fact remains that, unlike national communities, the emerging world community has no collective memory or common history born of a shared past to inscribe itself in the long term. This is why anticipation is the third instrument for lasting in the unforeseeable, as humanity becomes aware of its common destiny. However, there are several narratives of anticipation, and several possible destinies, depending on the dominant narrative.

Upstream, the voluntarist 'programme-narrative' seeks to guide the unpredictable by prescribing a rationality: the 'all market' of neoliberalism, the 'all digital' of post-humanism, and even the 'world empire' of a China revisiting its past. By referring to the Classics, which placed everything under the Emperor's authority (tianxia), the new leaders are trying to legitimise the "New Silk Roads" programme, which would control both space (land, sea and air) and time (predetermined agenda).

The 'disaster-narrative', inspired by fear, attempts to predict the unforeseeable in order to prevent proven risks. Enlightened by scientific knowledge, it tends to expand, in the face of the 'risks of risks', from prevention to precaution and even prediction (predictive police and justice). Thus, in the face of climate change, the depletion of planetary resources, or more broadly the transgression of planetary boundaries, the ecological narrative of Mother Earth is opposed to the 'Great Collapse'. Postulating what Michel Serres called a "natural contract", this narrative does not refer to a real contract (which would be even more fictitious than the "social contract"), but to an "ecosystemic understanding of human existence", which links the destiny of humanity to that of the living world.

Finally, Mundiality is told as a "adventure-narrative" that takes seriously archipelagic thinking, or trembling thinking, in the service of a appeased mundiality. Mundiality: this "unprecedented" adventure that we are all given to experience "in a space-time that for the first time, really and dramatically, conceives of itself as both unique and multiple, and inextricable". Open to the world to come, it is the only anticipatory narrative that accepts the unforeseeable, confident in the human capacity to adapt, both to preserve a habitable earth and to respect the rights of the eleven billion or so human beings predicted for the end of the century. It is perhaps also the only one - if it resists the power of the World-empires without ending in chaos or collapse - that would allow us to grow in the unpredictable.

Growing up in the unpredictable

Growing up is not only about ensuring the survival, or even the expansion, of the human species, but also about learning to "humanise" globalisation. The difficulty is that each community has developed a vision of humanism over the course of its history. On a planetary scale, as we pointed out above, the world community has no common history. Nevertheless, it forms a kind of "spiral of humanisms" which generates principles of "justice", regulating or reconciling, allowing the opposing winds to be reconciled in a dynamic balance, better adapted to a world in movement than a static order.

Humanising: the spiral of humanisms

A symbol of the permanence of Being in evolution, a spiral is neither the banner of a bellicose humanism brandished by the conquerors, nor the new garb of an imperialism that does not say its name. Rather, it bears witness to the plurality of societies, suggesting the endless winding of multiple visions of Relation, between humans but also between living, human and non-human beings.

Snail Sleep of an Austrian Landscape, Friedensreich Hundertwasser, 1957; Image credit: lanntair.com

The oldest humanism is that of Relation, which links each human to the communities of proximity, family, village, tribe, still inspiring certain traditional visions like Ubuntu in South Africa. But the most familiar humanism in the West is the one that asserted itself in the 18th century Europe, at the time of the Enlightenment, as a humanism of Emancipation. It enshrined human rights, including fundamental freedoms (civil, political, economic, social and cultural) in a Universal Declaration that enshrined the equal dignity of every human being (1948). But already a new humanism, linked to interdependencies within the common home, refuses to place humans in a position of overhanging superiority and connects them through interactions with non-human living beings. There remains, however, an awareness of a specificity of humans: their non-determination which makes them both creative and responsible.

This ‘spiral of humanisms’, which is more respectful of differences, will perhaps enable the humanities to adapt to this unpredictable situation, at least part of which escapes the prescriptions of programme-narratives and the predictions of disaster-narratives, in order to open up to the possible balances of adventure-narratives, such as that of globalisation. But, in order to ensure this ‘dynamic’ balance, where can we find that which would be like the plumb line of world governance?

Balancing : The plumb line of governance

Humanity can only grow in the face of unpredictability by balancing tensions on the basis of principles of justice inspired by the spiral of humanisms that would regulate our humanity: the humanism of relationship inspires the principles of fraternity and hospitality; the humanism of emancipation inspires the principles of equality and dignity; the humanism of interdependence inspires the principles of social solidarity and ecological solidarity; finally, the humanism of non-determination inspires the principles of responsibility and creativity. These principles should reconcile the irreconcilable, starting with the dreadful "security/freedom" pairing, which should be balanced, for example in the face of the pandemic, by the principles of equality and dignity. Similarly, in the face of climate change, the competition/cooperation pairing would be balanced by the principle of social and ecological solidarity, and so on for the other opposing pairs.

In short, lawyers are both landscapers and architects. As landscapers, they learn to adapt societies to the unpredictable surges of the living world. As architects, they imitate the builders, from the pyramids to the cathedrals, who managed to dampen the disruptive movements of the winds by plunging a plumb line into a bucket of water in order to regain straightness, literally and figuratively.

Figuratively speaking, if the plumb line symbolises the rectitude of the great builders of cathedrals, it could also symbolise the rectitude of the builders of a common world. It would thus show how to move from the great chaos of deregulated globalisation to a kind of 'ordered pluralism' that brings differences together without suppressing them, harmonises diversity without destroying it, and pluralises the universal without replacing it with the relative. For there to be commonality, differences must remain, but they must become compatible.

The oldest humanism is that of Relation, which links each human to the communities of proximity, family, village, tribe, still inspiring certain traditional visions like Ubuntu in South Africa.

In order to make differences compatible, law could serve precisely as a plumb line, if it does not merely juxtapose them but contributes to a common ordering. (4) Plunged into the octagon of the 'principles of justice' that came out of the spiral of humanisms, legal systems would avoid the overly fixated narratives of anticipation that risk, as we are seeing in the face of the pandemic, immobilising humans and destabilising the world's legal balance. These principles would oppose justice to the force of programme narratives (All-Market, All-Digital or World-Empire) that claim to prescribe the world order. They would use the analyses of catastrophe narratives (health crisis with pandemics, or ecological crisis with future crimes of ecocide, literally those that destroy our common home), while rejecting their claim to predict and prevent the unforeseeable.

In the end, the unpredictable calls for thinking without arrogance, but with confidence in the human adventure: "It is not the fear of perishing but the ambition to live that has thrown human beings onto the roads of the earth, the sea and the sky." (5) The ambition to live reminds us both of the limits of planet Earth, the common home that we must protect if we are to last, and of the infinity of the cosmos that encourages us to grow. To last and grow in the unpredictable is perhaps simply to learn to welcome it and adapt to it, in search of this dynamic balance, always in motion. Unlike programme-narratives or disaster-narratives, adventure-narratives would stabilise societies without immobilising humans.

NOTES

1. M. Delmas-Marty, Aux quatre vents du monde, Seuil 2016; Sortir du pot au noir, Buchet Chastel, 2019

2. E. Glissant, "The trembling thinking is neither fear nor weakness but the assurance that it is possible to endure and grow in the unpredictable", La Cohée du Lamentin, Gallimard, 2005 p.23

3. Enrico Letta, "Human interdependence will guide our transition", Le Monde 22 May 2020

4. On the way to a universalizable Common Jus, forthcoming Mare & Martin, 2020.

5. Teilhard de Chardin.