UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Why is there an international commercial uniform law rather than nothing? : a postmodern manifesto Marquis, Louis 2000

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata


831-ubc_2001-611396.pdf [ 17.54MB ]
JSON: 831-1.0077556.json
JSON-LD: 831-1.0077556-ld.json
RDF/XML (Pretty): 831-1.0077556-rdf.xml
RDF/JSON: 831-1.0077556-rdf.json
Turtle: 831-1.0077556-turtle.txt
N-Triples: 831-1.0077556-rdf-ntriples.txt
Original Record: 831-1.0077556-source.json
Full Text

Full Text

WHY IS THERE AN INTERNATIONAL COMMERCIAL UNIFORM LAW RATHER THAN NOTHING ? A POSTMODERN MANIFESTO  by  LOUIS MARQUIS  L L . B . , Universite de Sherbrooke, 1986 L L . M . , University of Cambridge, 1988  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L L M E N T OF T H E R E Q U I R E M E N T S F O R T H E D E G R E E OF D O C T O R OF P H I L O S O P H Y in T H E F A C U L T Y OF G R A D U A T E STUDIES (Faculty of Law) We accept this thesis as conforming toTthe required standp^d  T H E U N I V E R S I T Y OF BRITISH C O L U M B I A October 1999 © L o u i s Marquis, 2000  In  presenting  degree freely  at  this  the  University  available  copying  of  department publication  for  this or of  thesis  this  of  reference  thesis by  in  for  his thesis  partial  fulfilment  of  British  Columbia,  I  and  scholarly  or for  her  of  T h e U n i v e r s i t y o f British Vancouver, Canada  DE-6  (2/88)  Columbia  purposes  gain  that  agree  may  shall  requirements  agree  I further  representatives.  financial  permission.  Department  study.  the  It not  be  that  the  Library  permission  granted  is  by  understood be  for  allowed  an  advanced  shall for  the that  without  head  make  it  extensive of  my  copying  or  my  written  11  Abstract  International uniform commercial law is like the realization o f a global dream. It is currently an unavoidable reference point because o f the flourishing legal scholarship that lends it confidence and breadth. Thus, certain people see the Vienna Convention on Contracts for the International Sale of Goods, to cite only one example, as the cornerstone o f the creation o f an international private law. Others, working with the theory developed by T. K u h n in The Structure of Scientific Revolutions, interpret it as a sign o f the birth o f a new paradigm underlying international commercial transactions. A s well, A . Kassis affirms that it represents the germ o f a future amalgamation o f all sales laws, while V . Heuze speaks o f it i n terms o f remarkable progress. Faced with such a strike force, I would like to revisit the intellectual act that w i l l reintroduce into uniform law the mystery it has lost and to which it has a right, like other things in life. Thus, I came to ask myself, why is there a uniform international commercial law rather than nothing? This paraphrase o f the fundamental metaphysical question formulated by M . Heidegger - "Why are there beings rather than nothing?" - underlies this entire thesis. It expresses the intrinsic though unacknowledged strangeness o f uniform law, and, correlatively, the attitude o f astonishment that one must adopt toward this juridical field. H o w am I going to follow-up on this? I would submit that one o f the right answers to this question resides in the pursuit of two objectives. The first objective is the following: propose and justify the constitutive elements of a postmodern consciousness of uniform law. The second objective w i l l develop two applications: one w i l l consist i n an interpretative schema o f uniform law, and the other in a uniformist reading o f the Quebec world.  Ill  T A B L E OF CONTENTS  Abstract  ii  T A B L E OF CONTENTS INTRODUCTION Prolegomenon Purpose o f the thesis Methodology Conceptualization PART I  iii 1 1 4 10 17  REGRESSIVE ANALYSIS: T H E C O N S E R V A T I V E CONSCIOUSNESS 23  Preliminary remarks A. A n emphasis on legal scholarship B. A jw/y-background  23 23 26  Chapter 1: A.  29 29 29 35 41 46  B. Chapter 2: A.  B.  Final remarks  Principles o f thought The context o f discovery 1. A metaphysical thought: The argument o f good faith 2. A n analytical thought: The argument o f the autonomy o f the w i l l . . 3. A simplifying thought: The argument of juridical convergence . . . . The context of justification . . . . ' Values  56 The context o f discovery 56 1. The value o f "liberty": The argument o f the concrete intention (real choice) o f the parties 57 2. The value o f "wealth": The argument o f growth 62 3. The value o f "utility": The argument o f the maximization o f interests 67 4. The value o f "justice": The argument o f equality and cooperation between the parties 72 The context of justification 77 1. Tableau 1: Content 79 2. Tableau 2: Procedure 82 91  iv  P A R T II  T H E C O N S E R V A T I V E CONSCIOUSNESS: CRITICISM  Preliminary remarks A. Criticism as legal imagination B. What demonstration? Chapter 1: A.  B.  Chapter 2: A.  B.  Chapter 3: A. B.  C. Final remarks  93 93 94 99  The Conservative consciousness, modernity and modern law The Correlation with modernity 1. M a i n features o f modernity 2. The correlation The correlation with modern law 1. M a i n features o f modern law 2. The correlation  101 101 101 110 115 115 122  Defamiliarization, or the pre-reformulation o f uniform law The Conservative consciousness'rupture 1. Some extra-legal elements o f rupture 2. Some legal elements o f rupture 3. The comprehensive critic and alternative o f Sousa Santos 4. Conclusion The postmodern reorientation o f uniform law 1. The oppositions a) First opposition b) Second opposition c) Third opposition d) Fourth opposition 2. The metaphors a) The metaphor o f the multiple b) The metaphor o f consensus c) The metaphor o f the flexible d) The metaphor o f the relative  127 127 128 132 137 140 142 146 146 148 150 152 154 155 157 159 161  Utopia, or the middle reformulation o f uniform law The transitory conception The outline o f a new discourse 1. The relational argument 2. The argument o f the common good 3. The worldly argument 4. The argument based on self-fulfillment and solidarity A history o f uniform law  164 165 172 172 173 176 178 180 188  V  PART III  T H E REFORMULATION OF UNIFORM POSTMODERN CONSCIOUSNESS  Preliminary remarks Chapter 1: A.  B.  C.  Chapter 2: A. B.  Final remarks  L A W : TOWARD A 190 190  The context o f discovery 197 Relational argument 197 1. Prelude 197 a) Relationalism as linkage 199 b) Relationalism as project 203 c) Relationalism as osmosis 208 2. Structure and content 212 a) Establishment o f cooperation (or linkage) 213 b) The principles stimulating cooperation (or the realization o f the project) 217 c) Cooperation between the parties and their environment (or osmosis) 222 The common good argument 226 1. Prelude 226 2. Structure and content 228 a) Nature: what does uniform law protect? 229 b) Does uniform law go far enough? 233 c) The common good argument, is it functional or not? 237 The worldly argument 243 1. Prelude 243 2. Structure and content 244 a) Global action: what does it signify? 245 b) Global action: how is it carried out? 249 c) Global action: which dynamic? 254 The context o f justification  259  Prelude Structure and content 1. W h y self-fulfillment and solidarity? 2. Strategic principles: what are they?  259 261 261 266 272  VI  P A R T IV  APPLICATIONS  274  Preliminary remarks  274  Chapter 1:  A n interpretative schema o f uniform law  281  The taking cognizance step 1. Description o f the process 2. Qualification and critique 3. Proposition The reasoning 1. Description o f the process 2. Qualification and critique 3. Proposition The situation 1. Description o f the process 2. Qualification and critique 3. Proposition  283 284 288 291 294 296 300 304 307 309 312 316  A uniformist reading o f the Quebec world Innovation 1. Description o f the variable 2. Evaluative reading 3. Prospective reading Diffusion 1. Description o f the variable 2. Evaluative reading 3. Prospective reading Aspiration 1. Description o f the variable 2. Evaluative reading 3. Prospective reading  320 323 325 329 334 338 339 343 347 351 353 358 362  A.  B.  C.  Chapter 2: A.  B.  C.  Final remarks  368  CONCLUSION  369  BIBLIOGRAPHY  380  Vll  Acknowledgement  First and foremost, I am greatly indebted to Professor Pitman Potter, my supervisor, for his guidance, his patient reading, and for his stimulating comments. I also wish to acknowledge my gratitude to Professors Joost B l o m and Bruce MacDougall, and to colleagues and friends who have, at some point in my research, helped me, especially Professors L u c B . Tremblay, Sophie Dufour, Nathalie Vezina, Normand Ratti, and Jean-Guy Bergeron. But above all, my deepest debt is owed to m y wife, colleague and friend Genevieve, and my children Marc-Antoine, Vincent, Felix, and Andreanne, for their constant encouragement in relation with m y big homework - mon gros devoir.  1  INTRODUCTION  Prolegomenon  A s a young boy, I was troubled by the mystery surrounding the things o f life. I could hardly understand certain aspects o f life, starting with my simple presence i n the world! O f course, many explanations from family and friends as well as those that I found by myself helped to guide and reassure me. However, this comforting effect was never more than transitory: at the beginning o f each day, other questions popped up. I gradually learned that many things were inexplicable, or only slightly explicable, or that it was useless to explain them. What we called tastes belonged to the realm o f these things. O n the other hand, many things seemed, as i f by magic, to have been totally, i f not very profoundly, explained. Quite often, these things were the exclusive domain o f those that the encyclopedias called the wise, the erudite or les savants. A s my knowledge grew concerning both my own tastes and those o f others, and with the teachings o f the wise, I developed a maturity which permitted me to clear up the mystery o f the things o f life. Paradoxically, however, I grew more and more interested in testing the depths o f this mystery; and, parallel to that, the frontier between tastes and intellectual knowledge at times became blurred. W o u l d the questions ever end?  W i t h hindsight, I realize that the troubling nature o f this constant confrontation with the inexplicable was a small price to pay for what I was able to learn from it. In fact, it was the  2 catalyst o f what fascinated me most. I now realize that the question that gave so much pleasure in my youth is the one I still ask myself today. Why is it so? still rings i n my mind when I ask myself what is the best way to know and change some aspect of the world in which we live. A n d I still find in it the same satisfaction. W h y is it so? A s P. Amselek writes, "To ask this question is to be conscious of the arbitrariness of the world, its contingency; it is to realize that it might have been or that it could be otherwise and to experience how singular it is as it is."  1  Several factors - affinities, tastes, opinions and intellectual considerations - could explain why I chose international commercial uniform l a w as the focal point of this thesis. A m o n g all 2  these, one seems to me to be fundamental. Uniform law is currently an unavoidable reference point because of the flourishing legal scholarship that lends it confidence and breadth. Uniform law is like the realization of a global dream. Thus, certain people see the Vienna Convention on 3  Contracts for the International Sale of Goodsf to cite just one example, as the cornerstone o f the creation o f an international private law. Others, working with the theory developed by T. 5  1. 2. 3.  4. 5.  P. Amselek, "L'etonnement devant le droit" (1964) Archives de philosophic du droit 163 at 165166 [translated by author]. Hereinafter "uniform law". See, for example, the authors' preamble in P.-A. Crepeau & E. M . Charpentier, The UNIDROIT Principles and the Civil Code ofQuebec: Shared Values? (Toronto: Carswell, 1998), which declares, "The International Institute for the Unification of Private L a w (known as U N I D R O I T ) strives to make the dream of ajus commune a reality." For a more general commentary on the idea of the dream, see R. J. Bamet & J. Cavanagh, Global Dreams: Imperial Corporations and the New World Order (New York: Simon & Schuster, 1995). A p r i l 11, 1980, U N Doc. A / C O N F . 9 7 / 1 8 , Annex I (1980). Hereinafter "Vienna Convention" or "CISG". J. A . Spanogle, "The Arrival of International Private L a w " (1991) 25 Geo. Wash. J. Int'l L. & Econ. 477.  3 K u h n i n The Structure of Scientific Revolutions, interpret it as a sign o f the birth o f a new 6  paradigm underlying international commercial transactions. A . Kassis affirms that it represents 7  the germ o f a future amalgamation o f all sales laws, while V . Heuze speaks o f it in terms o f 8  remarkable progress.  9  F o r the defenders o f unification, the Vienna Convention is highly  meaningful because it constitutes the most fully worked out form of unification. Indeed, it is not simply a model law by which one can be inspired in varying degrees, or a simple unification o f the conflict o f laws rules. It is an international convention which includes a complete set o f substantive provisions concerning sale. Faced with such a strike force, I would like to revisit the intellectual act that w i l l reintroduce into uniform law the mystery it has lost and to which it has a right, like all other things i n life. Thus I came to ask myself, Why is there a uniform international commercial law rather than nothing? This paraphrase o f the fundamental metaphysical question formulated by M . Heidegger - "Why are there beings rather than nothing?"  10  - underlies this entire thesis. It expresses the intrinsic though unacknowledged  strangeness of uniform law, and, correlatively, the attitude o f astonishment that one must adopt toward this juridical field.  6. 7. 8. 9. 10.  (Chicago: Univ. of Chicago Press, 1962). K. C. Randall, J . E. Norris, " A N e w Paradigm for International Business Transactions" (1993) 71 Wash. U . L. Q. 599. A . Kassis, Le nouveau droit europeen des contrats internationaux (Paris: L.G.D.J., 1993) at 559ff. V . Heuze, La vente internationale de marchandises. Droit uniforme (Paris: G L N Joly, 1992) at 367 [translated by author]. M . Heidegger, Qu 'est-ce que la metaphysique? (Paris: Gallimard, 1951) at 44 [translated by author].  4 P u r p o s e o f t h e thesis  To the question What are we aimingfor? M . Sautet answers, in his book entitled Un cafe pour Socrate, the following:  The fact that the pessimists are wrong does not prove that the optimists are right. To describe the future o f our civilization as a return to barbarism could be nonsense. However that does not at all justify the undisputed reign of market laws over the destiny o f humanity. 11  W i t h these words, the philosopher synthesizes and puts in perspective, i n his own manner, the contradictory feelings and acknowledgments o f disenchantment, disillusion, unconsciousness and uneasiness, on the one hand, and o f enchantment, charm, continuity and progress, on the other hand, that are created by the present epoch. For him, knowing what we 12  are aiming for requires us, above a l l , "to suspend judgment for an instant"  13  while we review  what we have been and what we are; in short, it requires the time to proceed to a deep study and reconsideration of our epistemology and our values. Sautet is thus in line with the movement that tries to combine a perception of the end o f certainty with a renewed search for the right and the  11. 12.  13.  ( P a r i s : R o b e r t L a f f o n t , 1 9 9 5 ) at 15 [translated b y a u t h o r ] . R . A r o n , Les disillusions duprogres: Essai sur la dialectique de la modernite ( P a r i s : C a l m a n n - L e v y , 1 9 6 9 ) ; P . C o l l i n , O . M o n g i n , Un monde desenchante ? Debat avec Marcel Gauchet sur le "Desenchantement du monde " ( P a r i s : E d i t i o n s d u C e r f , 1 9 9 8 ) ; A . S e m i n a t o r e , " D e l a c r i s e des f o n d e m e n t s a u c h o c d e s c i v i l i s a t i o n s " ( 1 9 9 5 ) E t u d e s i n t e m a t i o n a l e s 3 2 . F o r a n a n a l y s i s f o c u s e d o n the A m e r i c a n s i t u a t i o n , see H . J o h n s o n , " A m e r i c a a n d the C r i s i s o f C h a n g e " ( 1 9 9 6 ) 3 9 S a i n t L o u i s U n i v e r s i t y L a w Journal 1143 Sautet, supra n o t e 11 at 15 [translated b y a u t h o r ] .  5 good and face the challenge o f making the combination work for the best.  14  This appeal for a return by thought upon itself finds an echo in the juridical  field  composed o f the junction o f law and development, which is the backdrop for the present thesis. The law and development movement is currently responding to a foundational problematic that I would illustrate with the following question: "What does law have to say, i f anything, to economic, socio-cultural, and political development, and vice versa?"  15  The orthodox answer to this fundamental question is based on four fundamental ideas. First of all, the conception of law that underlies it is derived from positivism. This means that law must be based on real and observable facts and that any legal theoretical construct must be established by induction from ascertained facts, empirically confirmed. More specifically, positivism assumes that the jurist must observe the facts, that is, the formally acknowledged sources and institutions (governments, courts, laws, regulations, etc.) of the law in order to frame the reasoning which correctly accounts for legal reality. The orthodox answer considers, furthermore, that the law, so conceived, intrinsically possesses the elements likely to ensure development. Put differently, the relationship o f law to development is unilinear: this characteristic tends to make the law a necessity and to attribute to it a direct, i f not exclusive, role  14.  15.  I. Wallerstein, "Social Sciences and the Quest for a Just Society" (1997) 102 American Journal of Sociology 1241; C. Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989); J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971); B. de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (New York: Routledge, 1995). M . O. Chibundu, "Law in Development: On Tapping, Gourding and Serving Palm-Wine" (1997) 29 Case W. Res. J. Int'l L. 167 at 213.  6 in every perspective o f development. The idea o f the transplantation o f law consolidates these statements. It takes for granted that it is possible to identify and to conceptualize the juridical elements that explain the advancement of a society and to export them, with certain adjustments, into another society. Finally, orthodoxy relates both the appropriateness and the usefulness o f law to its capacity to effectively influence development. It thus tries to establish a relationship of cause and effect between the law and development which is marked by certainty and predictability. Overall, these precepts favor the development o f points o f view o f a universal nature on the relationship of law and development. This tendency is inherent in the approach they use, an approach consisting of objectively grasping reality, rationalizing it according to abstract legal categories and acting on it through general commandments and principles.  Another route, which I describe as emerging, proposes both a vision and an approach which are essentially different from those underlying the orthodox answer. Thus, for the emerging route, the nature and sense o f law are not linked to the observation o f facts that are foreign to thought and deemed as constituting a neutral, objective and consistent point o f reference. Rather, they derive from an internal reality, a vision that P. Amselek explains with the formula "the law i n minds." From that point on, legal frontiers extend beyond the positivist 16  framework constituted by the State and its legislative and regulatory acts. What the law is becomes bound up with a given context o f human life as made up o f attitudes, experiences and  16.  P. Amselek, " L e droit dans les esprits", in P. Amselek & C. Grzegorczyk, eds., Controverses autour de I'ontologie du droit (Paris, P.U.F., 1989) at 46 [translated by author].  7 hopes. A s well, this internal reality turns law into a permeable and permeating entity: juridical 17  facts move through other types of facts (economic, political, social, etc.), thus creating reciprocal zones o f contact and influence whose manifestations and results are manifold and often indeterminate. Consequently, the emerging route tackles the law-development equation from the angle o f complexity. Further, this route replaces the idea o f transplantation with the idea o f interaction. Such a substitution manifests a dual concern: the first concern is to understand the way one or some aspects of the law-development relationship are diffused and transformed from one human site to another; the second is to grasp what a given human site has been able to do (innovate, consolidate, etc.) with an aspect. Finally, these concerns ally themselves with an approach that sees the law-development relationship as a web that can be disentangled through interpretation.™ Hence, whereas the orthodox response was concerned with establishing sure links with predictable repercussions, the emerging route shows a willingness to emphasize the web o f significations that relate law and development. 19  In my opinion, the emerging route strikes out in new directions that may help us better understand what we are aiming for. Put differently, "It is these considerations [those o f the emerging route] that ought to dictate the nature and direction o f future inquiries into law and  17. 18. 19.  J . - G . Belley, Le droit soluble : Contributions quebecoises a I 'etude de I'internormativite (Paris: L.G.D.J., 1996). D . E . Apter, Rethinking Development: Modernization, Dependency, and Post Modern Politics (New York: Sage, 1987). C. Geertz, Local Knowledge (New York: Basic Books, 1983); also, The Interpretation of Cultures (New York: Basic Books, 1973).  8 development." But how, through the intervention o f uniform law, are we going to follow up on 20  this? The feeling o f transformation at the heart o f the turning point with which Sautet is associated offers several right answers to this question. A s I. Wallerstein affirms, "It must be recognized that our truths are not universal truths and that i f there exist universal truths they are complex, contradictory and plural." For the purpose of the present thesis, I would submit that 21  one of these right answers resides in the pursuit of two objectives. The first objective (Objective A ) is to propose and justify the constitutive elements o f a postmodern consciousness o f uniform law. The raison d'etre o f this objective is the premise that the clarion call to better know what we are aiming for, as manifested i n the emerging route o f law and development, represents a significant indication o f the changeover o f the contemporary world from the age o f modernity to that o f postmodernity. In other words, the appeal o f Sautet must be interpreted i n light o f this affirmation by A . Huyssen:  What appears on one level as the latest fad, advertising pitch and h o l l o w spectacle is part o f a slowly emerging cultural transformation i n Western societies, a change in sensibility for which the term postmodern is actually, at least for now, wholly adequate. The nature and depth o f that transformation is debatable, but transformation it i s . 22  In this context, as T. Todorov tells us, "It is no longer more facts that we need, it is more  20. 21. 22.  Chibundu, supra note 15 at 228. I. Wallerstein, "Social Science and Contemporary Society" (1996) 11 International Sociology 7 at 24. A. Huyssen, "Mapping the Postmodern" (1984) 33 New German Critique 5 at 8. See alsoN. Rouland, "Les fondements anthropologiques des droits de l'Homme" (1994) 25 R.G.D. 5 at 7ff.  9 thought."  23  Therefore, to work on the conception of a type of reasoning - a consciousness - that  lends a postmodern direction to uniform law is not pure evasion, or some sort o f artifice. It is, first of all, a way o f placing uniform law i n congruence with a constantly evolving or strongly sought after reality, that of postmodernity. A s I w i l l show, the current consciousness of uniform law does not match this reality, rendering precarious its ability "to guide self-directed social 24  interaction."  25  Thus postmodern consciousness becomes a way o f making uniform law a  teleological juridical phenomenon capable o f inspiring as many practical applications as is necessary, as opposed to a legal meta-phenomenon.  26  W h i c h brings us to the second objective  of my thesis (Objective B). I propose to develop two such applications. One w i l l consist o f an interpretative schema of uniform law and the other of a uniformist reading of the Quebec w o r l d .  27  It is, i n the end, a way o f assuming the writer's responsibility, as urged by J.-P. Sartre. In the 28  text of his famous address, Sartre reminds us that those who believe that literature merely speaks for the sake o f speaking excuse writers from their responsibilities. One has to recognize that words contain attitudes and gazes; they convey ideas, "universes o f knowledge, consciousness and culture" that run through things and beings. The fact o f living begins with, or depends on, 29  the words that we assemble: "In speaking, I know that I effect change. It is not possible for me  23. 24. 25. 26.  27. 28. 29..  T. Todorov, Critique de la critique: Un roman d'apprentissage (Paris: Seuil, 1984) at 15 [translated by author]. See Part I, below. G. Postema, "Implicit L a w " (1994) 13 L a w & Phil. 361 at 374. R. A . Samek, The Meta Phenomenon (New York: The Philosophical Library, 1981) at 4 and 206: "The meta-phenomenon is the human propensity to displace "primary" with "secondary" concerns, that is, concerns about ends with concerns about means.... The legal system is a meta system par excellence. In separating social problems from the human condition, and converting them into legal issues, they serve the cause of the meta system." See Part IV, Chapter 2, below. J.-P. Sartre, La responsabilite de I'ecrivain (Paris: Verdier, 1998). Ibid, at 30 [translated by author].  10 to speak i f it is not i n order to effect change, unless I speak to say nothing; but to utter is to effect change and to be conscious that one effects change."  30  From this point o f view, to work on a  conception of a postmodern consciousness of uniform law is an interested act which brings with it concrete achievements. One must now use the appropriate methodology in the circumstances.  Methodology  The method I w i l l use i n the pursuit o f my two objectives consists o f three distinct processes.  The first process, which concerns more specifically Objective A , is inspired by the approach used by M . Koskenniemi in From Apology to Utopia: The Structure of International Legal Argument.^ In this work, Koskenniemi wishes to conduct "an exposition and critical discussion o f the assumptions which control modern discourse about international law."  32  According to h i m , these assumptions are derived from a liberal political theory. This explains why he expresses the opinion "that it is neither useful nor ultimately possible to work with international law i n abstraction from descriptive theories about the...character o f social life  30. 31.  Ibid,  at 32 [translated by author]. (Helsinki: Lakimiesliiton Kustannus, 1989).  32.  Ibid, at xvi.  11 among States and on the desirable forms o f such life."  33  Koskenniemi uses a method that he  summarizes as follows:  The approach followed here is one o f "regressive analysis". I shall attempt to investigate discourse about international law by arguing back to the existence o f certain conditions without which this discourse could not possess the kind o f self-evidence for professional lawyers which it has. In other words, I shall argue, as it were, "backwards" from explicit arguments to their "deep-structure", the assumptions within which the problems which modern lawyers face, either i n theory or i n doctrine, are constituted. 34  It is thus important, according to Koskenniemi, to unravel the explicit arguments i n order to access to the deep-structure of what can acceptably  - the assumptions  - as the latter determine "the  conditions  be said within [the arguments], or what it is possible to think or believe  in [them]." The operation is combined with a critical insight, because i n attaining the essential 35  considerations "which control the production o f particular arguments within discourse,"  36  it  becomes possible to understand more exactly why these arguments give such and such a result. In the same way, "it opens up a possibility for alternative descriptive - and simultaneously normative - characterizations of the world" we live and would like to live i n .  37  If they do not act  in such a manner, jurists are condemned to live "with the prevalent routine o f interpretative intuitionism" and thus to experience difficulty "in integrating their descriptive and normative 38  33. 34. 35. 36. 37. 38.  Ibid, Ibid, Ibid, Ibid, Ibid, Ibid,  at xiii. at xvii. at xxi-xxii. at xxii. at xxiii. at xxiv.  12 commitments into analytical studies about the content of the law." Consequently, the analysis 39  as a whole consists o f a three-part sequence: unraveling (regressive analysis), critique, reformulation.  In order to be able to propose the constitutive elements of a postmodern consciousness, I w i l l apply this threefold process, adapted and synthesized as follows:  -  Uniform law w i l l be examined as discourse, that is, as a web incorporating various means o f expression and persuasion.  -  These means w i l l be represented by arguments or concepts that form, i f we view them i n perspective, the surface or the primary level o f uniform law.  -  The meaning o f these arguments is bound up with a background picture o f uniform law constituted o f principles o f thought - ways o f seeing things and encompassing reality - and a normative content - values - that permit one to grasp this reality. I w i l l be interested i n the philosophical turn of these principles of thought and these values.  -  The background o f uniform law constitutes a whole which cannot be divided up in an exclusive and definitive manner among the various arguments. This implies that the sense of a given argument is bound up with, or depends upon, that which is present i n the other existing arguments; that it is not predetermined nor  39.  Ibid,  at xiii.  13 definitively granted; and that it is possible to use different arguments to arrive at the same result.  40  The arrival at the background of uniform law through regressive analysis or unraveling w i l l take up Part I of the thesis. It w i l l uncover the type of consciousness that dominates uniform law at the present time, a consciousness that I w i l l qualify as being conservative. Once this step has been completed, I w i l l proceed, i n Part II, on the basis o f the premise that I proposed above of a changeover towards postmodernity, to a critique o f conservative consciousness. This w i l l lead i n Part III to the step called reformulation, which w i l l bring to light a postmodern consciousness of uniform law. Parts I to III w i l l not take the form of a clause-by-clause analysis of the different sources o f uniform law. They w i l l take the form, rather, o f a philosophical, conceptual and doctrinal discussion centered on different arguments. This discussion w i l l probably appear quite distant from usual analysis o f uniform law and, accordingly, many scholars and jurists might disagree with it. That should not be disturbing. A t this stage, I would simply put forward the view that this orientation is strictly and rigorously consistent with Koskenniemi's approach. A s a matter o f fact, to adopt a different orientation - such as a clauseby-clause analysis - would constitute a misapprehension o f Koskenniemi's approach. In my opinion, it is necessary to follow this unorthodox orientation i n order to be able to address what appear to be broader issues surrounding the efforts to unify international commercial law. One of the most representative o f these broader issues is globalization. This highly current issue is  40.  J. C. Smith, "Action Theory and Legal Reasoning" in Elaine Gibson, ed., Tort Theory (North York: C a p t u s U . P., 1993) at 56.  14 the site o f lively debate about what lies in wait for our world i n the near and distant future. It is one among a set o f currents o f thought and action that contribute to creating the climate o f ambivalence described by Sautet. A notion commonly linked with the issue o f globalization is that megaforces are giving birth to systems and frames o f reference o f unparallelled magnitude, uniform law being one such. B y virtue o f this link, uniform law is particularly well suited to the kind o f fundamental analysis I propose to conduct. Further, as I intend to show, Koskenniemi's approach is a very interesting way to combine reflection - Parts I to III - and application - Part IV.  The second process consists of establishing, through the threefold process of unraveling, critique, and reformulation, a distinction between the context of discovery and the context of justification o f the consciousness of uniform law. From a strictly literal point of view, these two expressions are a contribution to the philosophy o f science by H . Reichenbach, who sought to make a distinction between the description o f the origin or genesis o f an idea, proposition or  15 argument (the context o f discovery) and the proof or the demonstration o f this argument (the context of justification). He explains it as follows:  The act of discovery escapes logical analysis; there are no logical rules that could be applied to the construction o f a "discovery machine" that would assume the creative function o f genius. But it is not the logician's task to explain scientific discoveries; all that he can do, is to analyze the relation between the given facts and a theory that is presented to h i m and which claims to explain this relation. In other words, logic is not concerned with the context o f discovery. 41  For Reichenbach, the philosophic analysis of science and scientific theories themselves belong to the context of justification. A s for the factors that explain why the scientists have favored certain approaches to the detriment of others and how they have come to create a theory, they would belong notably to the realm o f psychology and history and thus to the context o f discovery. The distinction corresponds to a particular conception o f science i n which the type of truth sought takes the form o f universal spatio-temporal laws, constituted by the observation of facts which are presumed to be neutral and outside of human thought. For its supporters, it has the advantage o f giving the philosophy o f science a transcendental vision, that is to say one i n which the reasons justifying an argument command universal assent.  42  I intend to use this distinction i n a different manner in order to adapt it to the discursive  41.  42.  H . Reichenbach, L'avenement de la philosophie scientifique (Paris: Flammarion, 1955) at 199 [translated by author]. See also, by the same author, Experience and Prediction (Chicago: The University of Chicago Press, 1938) at 6-7. R. Nadeau, " L a philosophie des sciences apres Kuhn" (1994) X X I Philosophiques 159.  16 optic o f uniform law advocated in this thesis. This implies that both the context of discovery and the context of justification w i l l be assimilated to deliberative instances that permit us to weigh the pros and cons o f arguments reflecting different economic, cultural, political and moral interests and convictions. In this type of process, it is admitted that, ideally, the confrontation o f arguments should increase their precision, their coherence and their reflexive character^  43  Therefore the difference between the two contexts does not reside i n the manner in which the arguments w i l l be undertaken. The difference is rather i n the degree o f importance o f the motivations and criteria that are invoked i n order to justify such an orientation, decision or action. Thus, only those arguments that play a significant or decisive role i n the realm o f the consciousness o f uniform law w i l l belong to the context of justification, all other arguments being assigned to the context o f discovery.  Finally, the third process aims at viewing the consciousness - conservative as well as postmodern - o f uniform law as a sort o f ideal type. Following the practice initiated by M . Weber  44  for the purpose o f research, the ideal type can be related to an assemblage o f  characteristic, typical, or deliberately accentuated traits of a phenomenon, a situation, a doctrine, and so on. This permits this structure of thought to display a "conceptual purity [that] cannot be found i n reality." Thus constituted, the ideal type becomes a measuring device that facilitates 45  the determination of the singularity of the object under study by indicating up to what point, in  43. 44. 45.  P. Gerard, Droit et democratie. Reflexions sur la legitimite du droit dans la societe democratique (Bruxelles: Facultes universitaires Saint-Louis, 1995). M . Weber, Basic Concepts in Sociology (London: Owen, 1968). C. G . Hampel, Aspects of Scientific Explanation (New York: Free Press, 1965) at 165.  17 each particular case, reality diverges from what is presented from the angle o f a homogeneous and unreal mental image. In the present case, it goes without saying that the analysis o f the consciousness o f uniform law w i l l be as precise, as detailed and as clear as possible. Nevertheless, i n certain ways, this consciousness cannot but be somewhat unreal, approximate, tentative or transitory, i n part by virtue o f the attention I w i l l give to some aspects that appear to me to be dominant; but also because o f my emphasis and approach i n the demonstration o f any given argument. These w i l l naturally confer a relative character to the consciousness o f uniform law, a relativity that is reinforced by the Weberian perspective whereby conceptual tools, however necessary, are continually rendered obsolete by a reality which is itself in motion. The ideal type also serves as an instrument o f applied research  46  through the hypothesis and  statements it helps formulate, as well as the ideas and ideals that it contains and puts forward. Here, its value is determined uniquely by its efficiency and its ability to encourage various uses. A n d it is at this level that the two applications I w i l l develop in Part I V - the interpretative schema o f uniform law and the uniformist reading o f the Quebec world - w i l l be formulated.  Conceptualization  In general terms, uniform law refers to any intelligible set o f rules intended to govern one or more aspects o f commercial life. It is distinguished from national legal systems mainly by virtue o f its geographic scope: by its very nature, it applies to transactions whose  46.  By analogy, see R. H. Fallon, "The Rule of Law as a Concept in Constitutional Discourse" (1997) 97 Colum. L. Rev. 1.  18 implementation reaches beyond the borders o f a single state. In answering the question asked i n the title, I w i l l refer more spercifically to three versions o f uniform law. The first is designated under the name o f lex mercatoria.  41  It postulates the existence of transnational rules made up o f  usages and principles which would constitute a true juridical order specific to the operators o f international commerce. The second version is the result of a multi-state codification of a single and unique international commercial law. This codification is destined to put an end to the phenomenon of diversity of national juridical regimes. The Vienna Convention, which contains a set o f substantive provisions i n the matter o f the sale o f goods, constitutes one o f its most complete expressions. For our present purposes, this convention w i l l embody most aspects o f the second version, which I w i l l designate State law. The third version, which I w i l l call intermediate law, w i l l mostly be represented by the UNIDROIT Principles for International Commercial Law. * These principles, in the opinion of C. Kessedjan, are closer to an intellectual 4  study than to the proper work of an intergovernmental organization. They have many purposes, 49  such as serving as the contractual juridical framework for the parties, as a juridical reference for means o f interpretation in general, and as a model for national and international legislators.  47.  48.  49. 50.  50  The following article is often considered as the foundation of the movement: B. Goldman, "Frontieres du droit et lex mercatoria" (1964) Arch, de philosophie du droit 177. For a recent analysis, see F. de L y , International Business Law and Lex Mercatoria (North Holland: Elsevier Science, 1992). Rome, U N I D R O I T , 1994. For an introduction, see L. O. Baptista, "The Unidroit Principles for International Commercial L a w Project: Aspects of International Private L a w " (1995) 69 Tul. L. Rev. 1209; also, see A . Giardina, "Les Principes U N I D R O I T sur les contrats internationaux" (1995) J.D.I. 547. Hereinafter "Principles". C. Kessedjan, " U n exercice de renovation des sources du droit des contrats du commerce international: Les Principes proposes par 1'Unidroit" (1995) 84 Rev. crit. dr. internat. prive 641. See supra note 48, the preamble to the Principles.  19 To what extent are these three versions really law? If not, when can they become so? To what extent are the designations I have given them appropriate? T o what extent is each designation distinct from the others, hermetic? This type of questioning occurs frequently in the juridical literature that deals with uniform law. This is notably the case when we confront the lex mercatoria with State law. O n one side, one finds those who, like B . Goldman, argue in favor of the lex mercatoria.  51  mercatoria.  52  O n the other side, A . Kassis typifies the opposition to the lex  He maintains the thesis that any contract must necessarily be subjected to State  law. More specifically, the criticism o f lex mercatoria is centered on three points o f view: the theoretical, the ideological and the practical.  The theoretical point of view denies that the lex mercatoria could constitute a real legal order equivalent to that o f State legal orders. The dispersed norms covered by the expression lex mercatoria would not present a sufficiently organized character to meet the specifications for a legal order identified by the Italian jurist S. Romano. Ideological criticism then takes over from 53  theory to question the bias of lex mercatoria.  54  The latter is presented as beneficial only to strong  parties and, particularly in North-South relations, to the nationals of developed countries. In other words, lex mercatoria would essentially be a doctrine of laissez-faire. Finally, practical criticism  51. 52.  53. 54.  B. Goldman, " L a lex mercatoria dans les contrats et l'arbitrage international" (1979) J.D.I. 747; E. Gaillard, "Trente ans de lex mercatoria" (1995) J.D.I. 625. A . Kassis, Theorie generate des usages du commerce (Paris: L.G.D. J . , 1984); G. Delaume, "Comparative Analysis as a Basis of L a w in State Contracts: The Myth of Lex Mercatoria" (1989) 63 Tul. L. R. 575. For a balanced account, see J . Beguin, "Le developpement de la lex mercatoria menace-t-il l'ordre juridique international" (1985) 30 M c G i l l L. J . 478. L'ordre juridique (Paris: Dalloz, 1975). W. Wrengler, "Les principes generaux du droit en tant que loi du contrat" (1982) R. crit. d. i. p. 467; M . Mustill, "The N e w Lex Mercatoria" in Etudes Wilberforce (New York: Oxford U.P., 1987) 149.  20 relates to the supposed difficulty o f identifying the content o f lex mercatoria with any degree o f precision.  55  The vague and ambiguous character o f its rules, its contradictions and the  disappointing results o f its years o f application are all emphasized in this form o f criticism.  The adoption and coming into force o f the C I S G has not closed the debate. For one, B . Audit argues that the C I S G and the lex mercatoria do not claim the status o f exclusive source o f international commercial l a w .  56  Although the rules o f the Vienna Convention have been  adopted by states, these rules are considered to coexist with usages o f international commerce and the principle of the autonomy of the parties. Actually, the Vienna Convention creates a law sanctioned by states, but at the same time it would recognize the validity o f rules issuing from commercial practice. However, others adhere to Kassis' opinions, by advocating a systematic vision o f the C I S G as a law of sales constituted o f norms gathered into a statute. Other potential 57  norms would either be governed by this statute, as provided under section 7,  58  or ignored. One  o f the most striking examples o f an ignored potential norm is that o f the lex mercatoria. One o f the reasons produced to justify this omission is symptomatic of this systematic vision: it would simply be integrated, replaced or eliminated by the C I S G . W h y does it matter? It would not exist  55. 56. 57. 58.  G . Delaume, "The Proper L a w of State Contracts and The Lex Mercatoria: A Reappraisal" (1988) Icsid Rev. 79. "The Vienna Sales Convention and the Lex Mercatoria" in Lex Mercatoria and Arbitration, T.E. Carbonneau ed. (New York: Transn. Juris, 1990) 139. Norris & Randall, supra note 7 at 93. "(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade; (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based, or in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."  21 any more. It is as i f one had succeeded i n constituting a purified and self-sufficient statute, according to H . Kelsen's thesis, in which the norms converge into the concept of the autonomy o f the parties.  O n the whole, the debate State Law vs Lex Mercatoria is largely fruitless. The main reason behind this futility is that is has never been convincingly argued that the two theories lead to different results. In each case, issues are formulated in a distinct way and reasoning exhibits distinct styles, but conclusions share a strong similarity. Moreover, lex mercatoria's proponents have been able to reply to criticism by arguing that: i) the determination o f the law applicable to the contract must not necessarily be linked to a complete legal order; ii) the ideological bias was not inherent i n the lex mercatoria; iii) the latter relied essentially upon a methodology likely to provide adequate solutions to each dispute.  For the purpose o f my contribution, the question o f the delimitation between law and non-law is not o f primary importance. I would prefer to postulate that each version o f uniform law possesses a potential for persuasive authority that must be properly used according to 59  circumstances. This perspective seems to me to be more fertile and more respectful o f the argumentative style that I wish to ascribe, following Koskenniemi, to the consciousness o f uniform law.  59.  H. P. Glenn, "Persuasive Authority" (1987) McGill L. J. 261.  22 B y linking this conceptualization to the other structuring elements presented above — prolegomenon, purpose, and methodology — I w i l l be able to show that conservative consciousness follows this logic: uniform law facilitates international trade by setting the juridical conditions favourable to it; the growth of trading activity creates greater individual and collective wealth; the wealth thus created is translated into a more fully experienced joie de vivre and happiness. Through the critique i n Part II, I w i l l relativize each o f these assumptions. Specifically, I w i l l show that: i) conservative consciousness is unsuited to dealing with certain significant realities o f commercial life in a postmodern context, such as irrationality and unpredictability; ii) increased international trade does not automatically bring about an increase in wealth, i n particular owing to what are called negative externalities; iii) wealth is not synonymous with joie de vivre and happiness, i f for no other reason than the fact that, for many, the turbulence and instability associated with cyclic economic processes are a source o f frustration. Working on the hypothesis that the contemporary world is entering postmodernity, I w i l l preserve that portion of each assumption whose validity and relevance survive this critique, integrating it into a postmodern consciousness of uniform law. The arguments used to build such a consciousness, to be presented in Part III, w i l l emphasize the need to place fulfilment and human solidarity at the heart of a uniform law concerned to produce durable contractual ties and result in spinoffs that harmonize with both the general interest and the interest o f all the communities involved. Part I V w i l l complement the earlier parts by presenting two applications that illustrate the pragmatic dimensions o f postmodern consciousness.  23 PART I  REGRESSIVE ANALYSIS: T H E C O N S E R V A T I V E CONSCIOUSNESS  Preliminary remarks  Two series o f remarks appear to be necessary in order to specify the type o f regressive analysis that is the object o f the first part.  A.  A n emphasis on legal scholarship  One o f the fundamental characteristics o f uniform law is to have as its object human actions. The effect o f uniform law is to assign to these actions the juridical, commercial and international dimensions that correspond to the qualifications and the field of application o f this discipline. Conversely, these actions themselves act on the meaning and scope o f uniform law. The evolution o f the norms that it contains is not fixed nor stopped i n time and space: new forces move it, notably new practices and attitudes. Uniform law and human actions are thus parties to a dialogue.  In the midst o f this coming and going, uniform law is called upon to manifest itself through its conceptual framework. This means that i n order to delimit the practices to which it refers and to influence them, as well as to be informed by them, uniform law uses a body o f notions which are more or less familiar and unequivocal: the contract, good faith, the essential breach, damages, and so on. These notions constitute the identity o f uniform law: they allow for  24 both its recognition and the observation o f its relations, i n their formal expression, with human actions.  The conceptualization at the source of the identity of uniform law is subordinated to two operations that subject the dialogue described above to particular conditions. First of all, human actions are only retained and understood by uniform law by using a method. This is because to grasp reality is not a phenomenon prior to experience, something innate. It relies rather on a series o f operations that orient the understanding that uniform law makes o f reality. Secondly, given the complexity flowing from the variety o f factual situations, uniform law is led to show a concern for concision. This implies that it w i l l constantly tend to the modeling o f human actions: only a certain number of traits judged to be pertinent and representative of these actions w i l l be privileged. The juridical concepts at the root of uniform law can thus be viewed in a dual perspective: for example, a contract w i l l be presented from a factual angle (an agreement between the parties, an exchange o f goods), but it w i l l have no less force as a theoretical representation for that.  But then we encounter risks: first, that the modeling w i l l create a self-enclosed and selfsufficient uniform law rather than one that exists in relation to human actions; and then that the mode o f grasping reality w i l l propose something other than effective and actual action, without really contributing to their clarification and comprehension. I f these risks arise, what is to be done? In this regard, R . Boudon has formulated a proposition corresponding to the idea o f background that constitutes one o f the main components of the methodology o f this thesis and  25 adds to that concept's precision. Boudon proposes to analyze the reasons underlying the formation of knowledge and beliefs. We must unravel the arguments that sustain our knowledge and beliefs in order to shed light on the determining role o f the implicit in our arrival at our conclusions:  Simmel has said that when, as scientists or lay people, we build a theory that tries to explain a phenomenon, we always introduce, besides the explicit propositions that we base our reasoning on, implicit propositions which do not appear directly in the field of our consciousness. Yet, he suggests, it may very well be that the structure o f the theory w i l l be modified once we succeed i n explicating these propositions. It may also be the case that the conclusions we draw from a theory appear to be different as soon as its implicit propositions are made explicit. 60  Boudon thus emphasizes the multiplicity o f the indispensable presuppositions to all knowledge, which form a sort o f subconscious. This subconscious cannot be ignored or underestimated: taking it into consideration is a way to explain the epistemological and normative situation of a discipline, as well as to avoid the risks named above or to re-establish contact with reality, as the case may be. In the Boudonian conception o f knowledge, this subconscious is located primarily i n the theory that serves as the foundation o f every discipline. This entire process goes beyond a current epistemology which, starting from the legitimate abstraction o f concepts, tends to concern itself only with the discrepancy between theories and facts as it questions the background arguments that have contributed to their development.  60.  R. Boudon, L 'ideologie (Paris: Fayard, 1986) at 103 [translated by author].  26 Insofar as these suppositions are admitted, they direct the regressive analysis towards legal scholarship on uniform law. It is legal scholarship, more than legislative provisions and case law, that assembles and synthesizes knowledge i n this matter and integrates knowledge into a methodical and organized intellectual construct. Whether it be for State law, for the lex mercatoria, or for intermediate law, it is legal scholarship that simultaneously crystallizes and rearranges the reasons underlying the formation o f knowledge and beliefs i n this field, reasons that then take the form of principles of thought and values. In the present thesis, certain standard works w i l l serve to represent legal scholarship. While this may seem unusual, I submit that the postmodern orientation of my thesis allows me to focus on a limited number o f materials to the extent that they are fully representative and that I subject them to thorough analysis.  B.  A/w(y-background  The second preliminary remark consists of explaining that the regressive analysis I am about to undertake tends towards a /?o/y-background. This reveals, to repeat the words o f C . Douzinas and R. Warrington, a "distrust... o f creating [a] large-scale, totalizing [background] in order to explain" uniform l a w .  61  In contrast, a /?o/y-background calls upon "small-scale,  provisional, open stories about" uniform law. The principles of thought and the values that w i l l 62  be brought to light w i l l consequently be numerous as well as potentially both  compatible and  contradictory. 61.  C. Douzinas, R. Warrington, Postmodern Jurisprudence.  (London: Routledge, 1991) at x. 62.  Ibid.  The Law of the Text in the Texts of Law  27 This is possible because of the irresolute or indecisive nature of law. Rules and juridical principles, as contents of thought and purely intelligible objects, only have their reality as mental processes. Their use occurs only through intellectual processes o f reconstitution, decoding and analysis. They are a part of what K . Popper calls the third world, which is the world of products of the m i n d .  63  This implies that the meaning o f law is not already constituted and filed away  somewhere so that it would suffice to take passive cognizance o f it. Rather, it should be treated as an element o f depth and weight that is constituted i n and distributed among the interstices o f consciousness: an element open to plurality, indeed abundance and mutation. The irresolution of law is due, as well, to its incompleteness. The juridical experience cannot be strictly predetermined in all circumstances, whether through narrative coherence or a process of pure and formal logic. This experience covers a number o f disparate components, intermingled and patched together; it refers to commandments conceived i n different periods, inspired by various and sometimes diametrically opposed considerations, and adopted by multiple authorities, always changing, extended as well as restricted. Therefore, "there is no core component o f the [law], only a shifting set of unstable references of multiple identities." This makes law an off64  center phenomenon.  In these conditions, how is a /?o/y-background still capable o f uncovering something perceivable? What is the kind of connection that exists among the constituting fragments of this  63.  64.  K . Popper, Conjectures et refutations : La croissance du savoir scientifique, trans. M . de Launay (Paris: Payot, 1985); by the same author, La connaissance objective, trans. C. Bastyns (Bruxelles: Editions Complexe, 1982). G. Minda, Postmodern Legal Movements. Law and Jurisprudence at Century's End (New York: N e w York University Press, 1995) at 241.  28 background? In this respect, I rely on an idea o f flexible coherence, o f simple adjustment.  65  The  operation o f adjustment, which consists o f transforming simple eclecticism into intelligible avenues, invites subtlety, refinement, or a predisposition to understand the differences and resemblances that are inaccessible at first glance. These types o f attitude are required because juridical experience is closely linked to opinion - and thus to discussion and controversy - and not to determinate knowledge. In other words, the experience o f law is based on more or less persuasive arguments, developed by reasoning that only contains relative convictions, which vary according to the facts i n a given context and, notably, according to the audience to which the reasoning is addressed; an experience that is therefore distinguished from a purely mechanical and deductive intellectual operation. If there is an equilibrium, it must be found i n 66  what I. Prigogine calls the structures of dissipated equilibrium, that is to say, constellations permanently open to fluctuations that are both predictable and subject to chance and can divert the constellations towards new structures o f equilibrium.  65. 66. 67.  67  See Part II, Chapter 3, Section C below for more on this topic. C. Perelman, L. Olbrechts-Tyteca, Traite de I 'argumentation: La nouvelle rhetorique, 5th ed. (Paris: P.U.F., 1988). I. Prigogine, I. Stengers, La nouvelle alliance : Metaphore de la science (Paris: Gallimard, 1979).  29 Chapter 1:  A.  Principles of thought  The context of discovery  The context of discovery that surrounds uniform law rests upon the composite of three types of thought: metaphysical, analytical and simplifying. Within each type of thought is found a discursive argument essential to the coherence of uniform law. These discursive arguments are, respectively, good faith, the autonomy o f the w i l l and juridical convergence.  1.  A metaphysical thought: The argument of good faith  Initially, the metaphysical approach finds support i n the search for a state o f good faith that remains true regardless o f its components. This is the search for the identity o f good faith. Both the lex mercatoria and State law express, each in its own way, a concern for this search. In the case o f the lex mercatoria, the metaphysical element o f identity is found i n the idea that good faith provides for a permanent and continuous source o f law and that it possesses a transcendence that renders it more important than all other categories, all other juridical principles. These characteristics are evident in particular i n the remarkable synthesis o f the lex mercatoria realized by F . Osman. In the first pages o f his study, Osman depicts good faith as 68  68.  F. Osman, Les principes generaux de la lex mercatoria. Contribution a I 'etude d'un ordre juridique anational (Paris: L.G.D.J., 1992).  30 a "common denominator o f general principles that emerge from precedent,"  69  "the keystone o f  the arbitral system," "a superior principle." He quotes R . V o u i n to the effect that it is "always 70  71  identical to itself... Its juridical efficiency can increase or diminish, yet it remains always the same...perfectly defined and constant,"  72  and M . Horsmans, who makes it "a rule o f  interpretation and the guide o f any action and every judgment."  73  Osman's position implicitly  incorporates the ideas o f permanence, continuity and superiority. State law is also concerned with identity and this translates into its desire to determine good faith. Here,;the question is to 74  establish one determinate state of good faith from reasoning that is founded upon considerations of compatibility, homogeneity and community. Thus, the identity o f good faith is articulated i n the guise o f a concept (i) that can go together with the existing economic, social, political and juridical systems; (ii) that should be made up o f elements o f the same or a similar nature; and (iii) whose viability and juridical efficiency depend on its ability to function as a common denominator for those who are subject to it. This reasoning is i n opposition to that which would allow an interpretation o f good faith sensitive to possible differences i n the status o f the contracting parties, or which would admit the idea o f variability o f good faith according to culture, rather than ignore or deny this reality. The two strategies, permanence and determination, both produce a generalizing effect peculiar to the element o f identity. Good faith is. This makes it a principle universal in its essence according to the lex mercatoria, or a principle whose  69. 70. 71. 72. 73. 74.  Ibid, at 18 [translated by author]. Ibid, [translated by author]. Ibid, at 19 [translated by author]. Ibid, [translated by author]. Ibid, [translated by author]. On this topic, see G. Lefebvre, " L a bonne foi dans la Convention des Nations Unies sur les contrats de vente internationale de marchandises" (1993) 27 R. J. Themis 563 at 570ff.  31 interpretation is standardized i n every respect - form, substance and results - according to State law.  This dimension of identity finds support i n another dimension, which is isolationist i n character. In fact, isolation embodies identity by translating the fact that a thing cannot be another thing. In other words, a thing invariably possesses its own existence and autonomy. This leads to the compartmentalization o f good faith i n a specific sphere, that of commerce, whence lex mercatoria's very strong tendency towards compartmentalization. One compartment results from the argument that the rules and principles of the lex mercatoria have an institutional origin, that they can be ascribed to a form of authority. This appears to be necessary to supporters of the lex mercatoria, so that this doctrine may be qualified as a juridical order. In the language characteristic of this version o f uniform law, the expression community of operators of international commerce and others of a similar kind give a personal form to the institution and thus ensure good faith does not evolve i n a juridical vacuum. A second compartment consists or rallying the members of this community around "[the] same end, [a] unique commercial idea: to answer the needs of international commerce.  1,75  The institutional unity of the operators is thus  assured, a unity whose universalism goes beyond the multiplicity o f objective practices and groupings. In short, the origin and the raison d'etre of good faith both belong to commercialism. A s for State law, the isolation of good faith is first of all simply formal i n the sense that it results from a sphere of application which is reserved for certain commercial activities. But this  75.  Osman,  supra note 38 at 409 [translated by author].  32 isolation is potentially much deeper than that. This may be explained as follows. The preamble to the Vienna Convention contains three statements o f principle.  76  The first two are strongly  normative. They refer to the "general objectives written in resolutions concerning the founding of a new international economic order," and to the fact "that the development o f international commerce on a basis o f equality and mutual benefit is an important element i n the promotion o f amicable relations between States." Further, the third statement stipulates "that the adoption o f uniform rules w i l l favor the development o f international trade." In m y opinion, this preamble should be understood as an invitation, not to say a constraint, to evaluate uniform law i n the light of its contribution to the improvement o f the quality o f life i n general and interpret it accordingly; that is, to transform uniform law - including, it goes without saying, good faith into a unity open to other realities that surround it. However, and this is particularly striking i n the case o f good faith, the only statement that is fully accepted is the third, concerning the juridical commercial uniformization. Only with difficulty or with little interest is good faith invoked regarding aspects not strictly related to trade but undoubtedly relevant, given their fundamental nature. Consequently, the universe o f good faith is reduced to the ultimately technical stake i n creating a uniform version o f it for commercial ends.  77  A l o n g with identity and isolation, the idea of non-contradiction also characterizes good faith. Non-contradiction is founded on the internal unity o f things and beings. O n the level o f thought, the underlying conviction of this idea is that the necessary true and precise description  76. 77.  Supra, note 4. See, for example, F. Enderlain & D. Maskow, International Sales Law (New York: Oceana, 1992) at 56.  33 o f things and beings requires that these be seen as free o f contradictory and antinomic components. Staying in the realm o f State law, the idea of non-contradiction appears first o f all in the role o f a general principle o f interpretation given to good faith, around which the other norms o f the Vienna Convention must be articulated. Article 7(1) C I S G , part o f chapter II entitled "General Dispositions", actually stipulates that "in the interpretation o f the present Convention, regard is to be had...to the need...to promote the observance o f good faith i n international trade." In this respect, good faith becomes an agent o f unity and convergence with respect to the norms placed under its control. U n t i l now, however, this first manifestation was overshadowed in intensity by a second. In fact, what becomes more revealing about the idea o f non-contradiction is the tendency to consider good faith in the light o f the "large number o f substantive provisions [that] directly apply i t " or that are susceptible of being influenced by it. 78  The right o f the seller to remedy an imperfect delivery during an anticipated delivery, the principle o f non-liability o f the seller i f the buyer knew or could not have been unaware o f a lack o f compliance at the time the contract was concluded, the rule o f mitigation o f damages and other provisions, are thus associated with applications or specific formulations o f good faith. Furthermore, late acceptance o f an offer; the handing over, by the seller to the buyer, o f documents concerning goods; and the quantity o f goods delivered are all situations that enable good faith to be particularized and to be better understood. Such a decomposition o f good faith shows a concern to reach a true and precise description o f it, free from any contradiction.  78.  Audit, supra note 4 at 49 [translated by author].  34 Finally, uniform law integrates the argument o f good faith into a dualism. This vision posits the coexistence of two orders or principles of different natures. It sanctions the idea of the excluded third party, which has the methodological advantage o f facilitating classification. In the matter of uniform law, dualism refers to the coexistence of national and international orders (or the classification national-international), it being understood that the lex mercatoria and State law are defined as belonging to the international order. Therefore, in spite o f its substantive borrowing from, and its subordination in certain respects to, national legal systems, the lex mercatoria claims an autonomy and independence in the realm of the creation and sanctioning of a law which is meant for different sectors o f the international world o f business. According to T. Carbonneau, "a body of juridical principles governing international commercial law..., a common law o f international transactions"  79  is developed principally under the impulse o f  arbitration. This common law takes place beside national laws and reinforces the widespread national-international general classification. A s for State law, it justifies the principle o f the irreducibility of its international nature to a national nature i n two ways. First o f all, it falls back on the thesis of the specificity of international commercial transactions i n comparison with their equivalent on the internal level. The international sphere would bring together circumstances (the distance separating the parties, the possible lack of understanding among them, etc.) that do not exist or that present themselves differently on a national level, and these circumstances would entail the development of a specific juridical regime. Secondly, State law appeals to the necessity for uniformization. This can be seen at the present time i n the widely held position that the  79.  T. Carbonneau, "Etude historique et comparee de l'arbitrage : Vers un droit materiel de l'arbitrage commercial international fonde sur la motivation des sentences" (1984) R.I.D.C. 727 at 774 [translated by author].  35 interpretation of uniform law in the light of correspondence to national law or following national techniques, risks compromising uniformity. To avoid running such a risk, the watchword is simply that uniform law must be viewed with an internationalist mentality.  2.  80  A n analytical thought: The argument of the autonomy of the will  Analytical thought relies first o f all on a rule o f obviousness concerning the principle of the autonomy o f the w i l l . Obviousness, which presupposes certainty as a state which is accessible to thought, consists o f doubting everything i n order to avoid error and to arrive, through a process o f elimination, at an indubitable truth. Uniform law borrows from this form of reasoning, a borrowing which is particularly striking in the case o f the Vienna Convention. On the one hand, the process o f reflection which is open to doubt, which constitutes the first phase o f obviousness, is recognized i n the volume o f legal scholarship devoted to the body o f rules (other than the autonomy of the will) that govern one aspect or another o f an international contract o f sale. These rules are discussed and debated at length. They do not take force merely by virtue o f being explicitly stated i n the text o f the Vienna Convention. Indeed, some jurists openly voice their own views and comments on them as contributions to a discussion and debate, sometimes going as far as to identify the features o f this debate. This is the case o f J. Honnold, who pleads in favor of a "continuing dialogue, spanning legal and economic backgrounds."  81  In  this context, doubt can truly be said to become a tool of knowledge. O n the other hand, the doubt  80. 81.  R. David, Cours de droitprive compare (Paris: Les Cours de droit, 1968) at 60-62. J . O. Honnold, Uniform Law for International Sales under the 1980 United Nations (Deventer: Kluwer, 1991) at 9.  Convention  36 thus expressed goes along with a principle which is stamped with certainty, that of the autonomy of the w i l l . The components of the Vienna Convention can be accepted and considered stable to a greater or lesser extent; the fact remains that the autonomy of the w i l l is the only element that cannot be put i n doubt or contested i n the formation and execution o f a contract o f sale. The primacy o f the w i l l o f the parties, autonomy as the primary source o f a contract o f sale: the pervasive presence o f these expressions demonstrates this certainty. B u t there is more: i n comparison with other principles of the juridical regime of international law, the principle of the autonomy of the w i l l has been hardly examined at all, aside from an occasional simple statement. If one accepts the affirmation o f the primary and fundamental role o f the principle, only one conclusion appears to be logically acceptable: the autonomy o f the w i l l asserts itself with such vigor that it does not need any proof. It is self-evident or obvious.  82  While the manner in which autonomy of the w i l l and the other components of uniform law are articulated relies upon the rule o f obviousness, the observation o f the manner in which they are structured attests to the second dimension o f analytical thought: division. This intellectual attitude aims at decomposing, at dividing concepts and difficulties into smaller units. This breaking down o f concepts into smaller units is supposed to facilitate the study o f these concepts as w e l l as the resolution o f the difficulties that they engender. In appearance, the lex mercatoria may seem impervious to this type o f reasoning. A s has been mentioned by several  82.  J . D. Feltham, "The United Nations Convention on Contracts for the International Sale of Goods" (1981) Business L a w Journal 346; D. J. Rhodes, "The United Nations Convention on Contracts for the International Sale of Goods: Encouraging the Use of Uniform International L a w " (1992) 5 The Transnational Lawyer 387.  37 of its critics, the inherent generality of lex mercatoria even militates against a precise definition of its content. For example, these critics underline its vagueness, its lack of organization and the insufficient number of its principles. Nonetheless, i n considering lex mercatoria as it has been 83  conceived and without prejudging its juridical validity, it appears to me to be truly engaged in the process o f dividing the autonomy o f the w i l l . It is important to realize, i n effect, that this "corporate system independent o f States"  84  could not have seen the light o f day and progress  without the principle o f the autonomy o f the w i l l . Therein lies an authentic basis. However, probably i n order to generate "a body o f rules sufficiently accessible and certain to permit the efficient conduct o f commercial transactions,"  85  lex mercatoria has progressively divided this  basis. In reality, it has woven, in accordance with its own method, an indefinite network of rules likely to furnish juridical norms pertinent to any litigation. For its part, State law makes this division one o f its principal attributes i n the pursuit o f the objective o f making international commercial transactions a more stable and predictable milieu. Underlying a juridical regime such as that o f the Vienna Convention lies the premise that the predictability and the security o f transactions depend upon its degree o f precision. It is with this i n mind that the Vienna Convention establishes a compartmentalized juridical regime (its structure follows the hierarchy part - chapter - section - article) and is detailed on the basis o f a presumed intention o f the parties. It is thus enabled to consider different aspects o f a contract o f sale (offer, delivery, etc.)  83. 84. 85.  G. Delaume, "The Proper Law of State Contracts and the L e x Mercatoria: A Reappraisal" (1988) ICSID Review 79. P. Kahn, " L a Convention de Vienne du 11 avril 1980 sur les contrats de vente intemationale de marchandises" (1991) J. D. I. 951 at 961 [translated by author]. M . Mustill, "The N e w Lex Mercatoria: The First Twenty-five Years" in Etudes Wilberforce (Oxford: 1987) at 180.  38 in isolation.  In addition to obviousness and division, there is the integration of the autonomy of the w i l l into a reasoning o f a causal nature. Causality assumes that laws exist and that they must be identified to ensure the indispensable explanation o f phenomena. In the sphere o f uniform law, autonomy o f the w i l l represents this fundamental explanatory reason o f contract. The current crisis that, according to several authors, has been shaking up the law o f contracts and contributing to a rethinking or even replacement o f the autonomy o f the w i l l as an explanatory reason has thus not reached uniform law. W e do not find, in uniform law, critical analyses for which "contract law is one or more of the following: indeterminate, legitimating, dead, simple, unsuitable, or irrelevant." The words o f J. Honnold on the subject o f the Vienna Convention 86  offer eloquent testimony to this situation. He writes, "The dominant theme of the Convention is the role o f the contract."  87  This domination results from the fact that the Convention "in two  fundamental ways responds to the power of agreement. " First of all, "The Convention itself was 88  produced by agreement," that is to say, "States from all parts o f the world, through collaboration..., reached consensus." Then, "Consistent with these origins, the Convention does 89  86. 87.  88. 89.  R. A . Hillman, "The Crisis in Modem Contract Theory" (1988) 67 Tex. L. Rev. 103 at 103. Honnold, supra note 81 at 47.  Ibid, at 48. Ibid.  39 not interfere with the freedom o f sellers and buyers to shape the terms o f their transactions."  90  In light o f what precedes, Honnold concludes:  A highly respected legal scholar i n a rhetorical flourish (later modified) announced the "Death o f Contract". A t least for international sales this report (as M a r k Twain said o f a report that he had died) is grossly exaggerated. 91  This point o f view is largely dominant, some would say wholly dominant, i n uniform law. Consequently, the best explanation for the birth, the formation and the end o f a contract remains that this is what the parties wished.  Finally, the connection between uniform law and analytical thought springs from the quasi-total exhaustiveness of the principle of the autonomy of the w i l l . For our present purposes, this exhaustiveness can best be demonstrated through the contribution to the legitimacy o f uniform law of the principle of the autonomy o f the w i l l . T w o elements are at the center o f this contribution. The first refers to the omnipresence that legal scholarship and case law grant to the autonomy of the w i l l . P. Lalive for one affirms that "it is a principle so generally recognized i n all systems o f private international law that we can hold it as an international custom or as a general principle o f law recognized by civilized nations."  92  In similar fashion, the Topco-  Calasiatic award decision contains the following passage:  90. 91. 92.  Ibid. Ibid. P. Lalive, "Ordre public transnational (ou reellement international) et arbitrage international" (1986) Rev. arb. 329 at 351-352 [translated by author].  40  A l l juridical systems, be they what they may, apply the principle o f the autonomy o f the w i l l to international contracts. A s to substantive law, all juridical systems consecrate this principle, which appears consequently to be universally admitted. 93  The second element is founded upon confidence in a twofold capability of international merchants: to generate, by themselves, fundamental values that are i n conformity with the aspirations o f individuals and nations, or simply to see them integrated into their practices. This conviction is held by the merchants, of course, but also by States. According to Lalive, the States "have chosen, and judged it according to their interests, to partake i n international commerce,"  94  leaving, notably, "broad powers of self-regulation to the international community o f merchants".  95  The importance granted to the principle extends to justifying the taking into  consideration o f public order "by the nature o f things [but also by] the very wishes or the legitimate expectation of the parties." Given its omnipresence and the allegiance it commands, 96  the autonomy o f the w i l l thus becomes an exhaustive argument, because it asserts its priority among all possible means o f favoring and legitimizing the development o f international commerce.  93. 94. 95. 96.  Topco Calasiatic v. Gouvemement Libyen, reported at (1977) J.D.I. 350. Lalive, supra note 92 at 370 [translated by author]. Ibid, [translated by author]. Ibid, at 371 [translated by author].  41 3.  A simplifying thought: The argument of juridical convergence  Initially, juridical convergence is in keeping with the search for order, as appears from the affirmation o f B . Bonnell to the effect that the unification o f law answers the almost too evident need "to assure the most orderly and secure development possible for commercial life."  97  Order would permit the subjection o f commercial activity to a body o f rules that present "the essential characteristics o f practicality, simplicity and clarity, free o f legal shorthand, free o f complicated legal theory, and which [are] easy for the businessperson to understand:"  98  Essentially, the search for order would impose itself as the antidote to the phenomenon qualified as "the nationalization of private international law" by R. D a v i d . B y virtue of this phenomenon, 99  the juridical regime applicable to international commercial relations would be built from national instruments, that is to say from those developed by State legislators. With time, nationalization would have set itself up as an obstacle to international commerce. D a v i d for one stresses the diversity of rules of conflict of laws and of the national material rules that would put the juridical security o f transactions i n peril, while A . Kassis endorses the "concert o f lamentations on the deficiencies"  97. 98.  99. 100.  100  o f the conflictual method. In short, it would become manifest and patent that  M . J. Bonell, "Introduction to the Convention" in M . J. Bonell & G. M . Bianca, eds., Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Milan: Guiffre, 1987) at 3. E. P. Mendes, "The U. N . Sales Convention & U . S. - Canada Transactions; Enticing the World's Largest Trading Bloc to Do Business under a Global Sales L a w " (1988) 109 Journal of L a w and Commerce 109 at 121. R. David, Le droit du commerce international: Reflexions d 'un comparatiste sur le droit international prive (Paris: Economica, 1987) at 1 Off [translated by author]. Kassis, supra note 8 at 559 [translated by author].  42 "national laws are the international merchants', and traders', worst enemy."  101  The establishment  of intelligible relations among what would otherwise be a disorganized and ill-assorted plurality of national laws can take one of two courses. The first, that o f amalgamation, characterizes the process o f development o f State law. It consists o f bringing together elements from various juridical cultures as well as other original elements and combining them all as carefully as possible to create a new body that cannot be reduced to its component parts. The second avenue, which underlies lex mercatoria, is associated with spontaneity. Here, merchants are supposed to generate, on their o w n initiative, a juridical regime in conformity with the requirements which naturally result from commerce. They are seen to be acting for themselves, without outside interference (especially not from States), i n respect to a commercial activity which is part of the order o f things.  Amalgamation and spontaneity constitute strategies of the first order for imposing order on international commercial law, and thus favor juridical convergence. O n another level, each is supported by another component o f simplifying thought known as linearity. A s a means o f acceding to knowledge, linearity is characterized by the search for processes, rules and principles free from ambiguity and permitting the prediction o f the appearance o f phenomena. In all matters, the absence o f ambiguity and the capacity o f prediction should lead to the acceptance of one single point o f view for describing and understanding the world, things and beings. It is precisely towards these attributes and this unity that uniform law turns. O n the one hand, the idea  101.  Mendes,  supra note 98 at 112.  43 according to which "the key objectives o f stability, safety and foreseeability ...are essential for international trade l a w "  102  is an intrinsic part of the conception o f uniform law held by the vast  majority o f jurists. In many cases, this conception turns out to have priority, or perhaps exclusivity. O n the other hand, the simplest solution to these imperatives i s to be found i n the formulation and the perfection o f a form of juridical unity. Various ideological principles have served in the past as the foundation for the promotion of unity i n international commercial l a w .  103  Idealism (the unity o f the human species and planetary harmony), pragmatism (the practical value, i n everyday commercial life, of working with a single legal regime), and historicism (the persistence or the return of jus commune) have each i n turn served to justify it. But more recently, H . Berman has proposed a global justification which he conceptualizes under the expression o f world law. Berman refers to all fields o f activity (sports, literature, commerce, etc.), to all types of rules o f conduct (laws, customs, usages, etc.) and to all facets o f human life (history, humanism, society, etc.) to show that "for the first time i n the history of the human race, most o f the peoples o f the world have been brought into more or less continual relations with each other."  104  From this, he concludes that "the right name for the new era is 'emerging world  society', and the right name for the law by which it is governed is world l a w . "  102.  103. 104. 105.  105  H. G. Naon, "The U N Convention on Contracts for the International Sale of Goods" in N . Horn, C. M . Schmitthoff (ed.), The Transnational Law of International Commercial Ttransactions (Deventer: Kluwer, 1982) 89 at 92. J. W. Westenberg, "The Quest for Unification" mForty Years On: The Evolution of Postwar Private International Law in Europe (Deventer: Kluwer, 1990) at 195. H. Berman, "The Role of International L a w in the Twenty-first Century: World L a w " (1995) 18 Fordham Int'l L. J. 1617 at 1617. Ibid.zt 1618.  44 To take for granted that uniform law embodies the "only point o f view" legitimated by linearity is one thing. However, uniform law goes even further in its integration o f simplifying thought by falling back on the principle o f determinism. The objective consists in identifying the conditions, the circumstances or the facts that w i l l ensure constancy and persistence i n the convergence or uniformity o f law. In order to do so, lex mercatoria relies upon a global type o f determinism which is evaluated in time. Both academic studies and jurisprudence resulting from lex mercatoria reveal a method o f reasoning founded upon the joining together and the putting in sequence o f a large range o f sources. A n d even i f many facets o f the sources do not always formally possess a juridical value, they acquire an authority by the self-referential practices proper to this type o f reasoning. Furthermore, the collection thus created inspires a feeling o f security sought after by the merchants because it is founded on a master orientation, a guiding thread that F . Osman summarizes thus: "Uncover those rules that systematically respond to the needs o f international trade."  106  To sum up, lex mercatoria functions as i f each decision were  cumulative, and bound up with, and the fruit of, the totality o f all previous decisions. For its part, State law adheres to a determinism o f a more scientific order, as reflected i n the axiom the same causes produce the same effects. Thus, the drafters o f the Vienna Convention wished to go further than the simple development o f a uniform text. V e r y conscious o f the risk that the diversity o f juridical families and political and economic systems could spill over onto the interpretation o f the Vienna Convention, they undertook to identify the conditions o f existence o f uniformity that are objective and invariable, such that i f these conditions are respected,  106.  Osman, supra note 68 at 403 [translated by author].  45 uniformity w i l l necessarily be achieved. The difficulty o f this endeavor explains the dearth o f rules provided for on this subject in article 7 C I S G . But this does not prevent the determinist objective from holding firm, because, as R. Monaco declares, " A uniform interpretation is an absolute necessity."  107  Finally, uniform law projects an image o f simplification insofar as its connection with normality is beyond doubt. This connection is motivated by at least two types of arguments. The first, perhaps the most striking, refers to the intellectual and mental dimensions of the normality in question. It consists o f referring to uniformization i n such a manner that to prefer a different approach to regulating international commercial transactions would be equivalent to being incomprehensible. It is i n this sense that R. David, i n a critique of the nationalization of private international law, concludes that it is "contrary to sane reasoning."  108  The alternative of uniform  law is there, and i f it is obvious, it is because "logic and reason cannot be left aside with impunity."  109  A . Kassis argues in the same vein. Emphasizing the enormous potential o f the  development of uniform law through international agreements, Kassis affirms that "it would be irrational and unfortunate [for States] not to go further along this path."  110  R . Monaco is caught  up i n the same kind o f enthusiasm when he speaks o f "all [these] eminent jurists who work and devote themselves to the grand phenomenon o f uniform l a w , "  107. 108. 109. 110. 111.  111  which is thus viewed as  R. Monaco, "Allocution d'ouverture" in Le droit uniforme international dans la pratique (Rome: Oceana, 1988) at 3 [translated by author]. David, supra note 99 at 11 [translated by author]. Ibid, [translated by author]. Kassis, supra note 8at 562 [translated by author]. Monaco, supra note 107 at 1 [translated by author].  46 essentially good. A l l these arguments contribute to procure for uniformization an aura o f something always-already there - given - that is to say, whose presence is unmediated i n the juridical ordering o f international trade. The second type o f argument refers more to the diverse circumstances that frame uniformization. Viewed in context, this analysis displays the ineluctable dimension o f uniformization. The following affirmation by C . Samson is a good illustration o f this type o f argument:  In the present context o f the globalization o f trade, uniformization o f the applicable rules to commercial trade has become a necessity for participants in international trade. 112  In this perspective, interdependence and globalization go together w i t h " [the] explosive proliferation o f attempts to unify and harmonize private international l a w . "  113  When all is said  and done, the movement appears quite simply to be irreversible.  B.  The context of justification  I have proposed above that the context of justification refers to considerations that play a superior and decisive role i n the making o f a given decision. When it comes to uniform law, these ultimate considerations, i n whose light we come to discern the context o f discovery, are  112.  113.  C . Samson, "L'harmonisation du droit de la vente : L'influence de la Convention de Vienne sur revolution et l'harmonisation du droit des provinces canadiennes" (1991) 32 C. de D. 1001 at 1003 [translated by author]. Spanoggle, supra note 5 at 478.  47 conceived i n terms I w i l l refer to as those o f instrumental reason as opposed to ends-based reason.  M . Horkheimer writes as follows on reason:  Reason for a long time meant the activity o f understanding and assimilating the eternal ideas which were to function as goals for men. Today, on the contrary, it is not only the business but the essential work o f reason to find means for the goals one adopts at any given time. 114  The first part o f the statement refers to what Horkheimer designates by the words objective reason (or ends-based reason). This consists o f the process o f reflection on the objectives, the goals, and the visions that we choose and propose to reach or to realize. In other words, it concerns an exercise which is orientated towards the determination o f one or many ends. According to Horkheimer, it implies the conviction that it is possible to discover "an encompassing or fundamental structure o f being"  115  and to deduce from that a human destiny  founded on the ideals o f the greatest good. The exercise assumes as well the recognition that persons and societies have the necessary capacity to identify, rank and revise their values, as well as to proceed to make choices on the individual and collective process o f becoming that are forged from these same values. A t this point, the degree o f reason associated with the existence of a person or society depends on the degree o f harmony between their lives and this  114.  115.  M . Horkheimer, Critique of Instrumental Reason: Lectures and Essays since the End of World War II (New York: Seabury Press, 1974) at vii. See, also H. Stewart, " A Critique of Instrumental Reason in Economics" (1995) 11 Economics and Philosophy 57. M . Horkheimer, Eclipse de la raison (Paris: Payot, 1974) at 14.  48 encompassing structure. This first impulse is echoed i n the second, which seeks the appropriateness o f favoring such and such a means with a view to attaining or realizing certain ends. This is "subjective reason" (or instrumental reason). Here, the field o f analysis and application o f thought is limited to the way to attain an objective. It does not apply to the objective itself. This objective is always i n the end followed for some other reason, and so forth. This creates a spiral where the degree o f reason corresponds to the efficiency with which an obj ective is attained. For instrumental reason, it is useless to inquire about the ends because these cannot be weighed or judged according to reason or i n relation to any existing order. Horkheimer sees i n it the expression o f an abstract process o f thought: the reason depends on "the faculty o f classification, inference and deduction,"  116  regardless o f the substance o f thought being  conceived i n these operations.  Is uniform law framed by a form o f instrumental thought, i n which the emphasis is placed on the means, or on ends-based thought, which is centered on the ends? Initial observation o f the structure and content o f the argumentation that I believe belongs to the context o f justification reveals the presence o f both components, means and ends. In fact, to answer to the  needs of international trade and tofavor the development of international trade, which represent respectively the key formulae o f the lex mercatoria and State law, would appear to combine these ideas, i n that uniform law fills an instrumental function i n relation to a true end that is intrinsically and essentially good, namely trade. Is this to say that uniform law has succeeded in  116.  Ibid at 16.  49 occupying an intermediate position between Horkheimer's analytic poles, one which seeks the best o f each form o f reason and brings them to reflect on one another? I do not think so. More detailed observation w i l l lead to different findings.  The initial finding concerns the breadth of instrumental thought. A t this level, we should note the impact o f the idea according to which uniform law has been constituted with the view of serving trade. Legal scholarship, case law and statute law make it possible to evaluate this perspective with some acuity. What can be drawn from this is that uniform law exists to aid, help, and be useful to commercial activity. This characterization applies at the same time to merchants, on the one hand, and trade, on the other. It can thus be observed in those approaches that treat uniform law as an instrument placed at the disposal o f merchants, which they can use for their own profit. A s well, it is evident i n the viewpoints that model and frame it i n light o f conditions which are held to be normal for the functioning of trade. Furthermore, in many cases, uniform law is represented as the best juridical resource available concerning commercial activity. More specifically, the conclusions drawn from the analysis o f it are that it is definitely the most efficient resource, that is to say, that which w i l l produce the best results in commercial matters. This perspective underlies analysis of all forms, even those of a fundamental character. For example, K . C . Randall and J. E . Norris's thorough demonstration o f the birth o f a new juridical paradigm o f international commercial transactions, embodied notably in the Vienna Convention, takes a resolutely instrumental f o r m .  117.  Randall & Norris, supra note 7.  117  They justify this culmination o f a long  50 socio-historical process by three brief considerations: it fits perfectly with their vision o f present reality, which would be that o f an "increasingly interdependent global community";  118  it  facilitates an increasing volume o f international trade; and it further satisfies "the increased involvement o f nation-states as parties to international business."  119  In short, that uniform law  is there i n order to furnish means is a shining truth.  The presence o f ends-based thought in uniform law is not at all o f the same nature. O f course, as I have previously affirmed, it is trade that seems to be understood as playing the role of end. However, I would submit that i n this role, trade does not assert itself in a very forceful manner. To the glamour o f instrumental thought there corresponds here something much more modest, as I hope to demonstrate.  First o f a l l , the clearly dominant perception o f trade can be reduced to a formal recognition o f it. Trade exists; it is a fact. This suffices for one to embrace and understand it. In terms o f analysis, factual existence prevails over content. This basic perception is particularized in different ways. One o f them could be translated as follows: while it is the raison d'etre o f uniform law, trade, in itself, remains hardly debated, whether as to its orientations or as to its effects. What is trade? Where is it going? H o w may one benefit from it? In the present state o f affairs, these questions occupy a marginal place i n the consciousness o f uniform law. In short, trade is not examined i n the light of, for example, the interests, the preferences and the  118. 119.  Ibid, at 600-601. Ibid at 601.  51 aspirations of all who participate in it and those who are affected by its fallout. A t the very limit, it takes on the look, rather, o f an objective entity, that is to say, an entity independent o f these considerations. Another way o f particularizing consists in automatically relating trade and happiness, without substantially deepening this analysis. This automatic tie appears in the feeling of assurance associated with trade and the hopes it creates for advancement and progress in general, a feeling very prominent i n uniform law. But it does not follow that the truth o f these assertions has been demonstrated. In the words o f G.C.J.J. V a n den Bergh, "We know in fact very little about the mechanisms o f legal development or the interdependence o f legal and economic development."  120  In these conditions, it becomes difficult to affirm that we really know  what is good i n trade and i n what measure this end can become a shining horizon, capable o f both reflecting on the means that must be undertaken in a given situation and creating a reliable destiny.  It sometimes happens, however, that trade tends towards such a horizon. In this case, however, the thought that results from it shows weaknesses that prevent it from being qualified as ends-based.  The most frequent weakness o f this thought is that it rests upon unrefined reasoning. Thus, at the beginning of the century, L . J. Kennedy joined uniform law and trade together and situated them at the center o f a humanist vision, that of a sincere sentiment of human solidarity,  120.  G. C. J. J. van den Bergh, "What L a w for Whose Development? Some Theoretical Reflections on L a w and Development" in Unification and Comparative Law in Theory and Practice: Contributions in Honour of Jean Georges Sauveplanne (Boston: Kluwer, 1984) 29 at 41.  52 which he formulated as "the far-off fulfillment of the divine message, On earth peace, goodwill towards men."  121  Uniform law and trade, on the one hand, and happiness, on the other, were  indissolubly bound up. Paradoxically, this vision has not been the object o f an intellectual development that corresponds to its depth and significance. It is true that on occasion, it has been clarified by references to the objectives relative to the creation o f a new international economic order, to equality, mutual benefit and other fundamental principles. It has also been admitted that these are "illuminating indications."  122  However, such details have remained secondary i n both  the pure and applied theory o f uniform law. It is impossible to affirm that they are at the center of demonstrations carried out i n order to seriously integrate them into the method and organization o f uniform law. Integration emerges rather from a simple but strong belief in the natural communion o f trade and progress i n all its forms; or i n a type o f automatism evident i n the feeling o f assurance that trade has been, is and w i l l be bound up with the needs o f the international community.  Besides, when reasoning on this subject does appear to go beyond an unrefined state, it still suffers from ambiguity. A key passage o f the analysis o f lex mercatoria written by F . Osman offers a typical illustration of this problem. Osman begins this passage by affirming that the societas mercatorum "develops the rules that respond to the needs o f its members i n an empirical manner."  123  This would explain that law belongs to normative disciplines, i n opposition  to purely explanatory ones. O n the basis of the premise that law accords with a value judgment,  121. 122. 123.  L. J. Kennedy, "The Unification of L a w " (1909) 10 J. Soc'y Comp. Legis. 212 at 214. M . J. Bonell, supra note 97 at 94. Osman, supra note 68 at 410 [translated by author].  53 Osman posits:  The judgment being necessarily founded on an evaluation o f the objectives undertaken, these disciplines w i l l postulate the search for an end to be discovered. Hence, the facts of life o f society are part of the foundation of the rules of law produced by the societas mercatorum. These facts generally cover political and social, religious and moral, or simply economic factors. 124  Osman follows this with the declaration, "The development o f an anational law rests essentially, i f not exclusively, on economic considerations,"  125  a position reinforced further along  with this statement:  We can therefore without objection transpose to the level of lex mercatoria the reflection of Josserand, which recognizes the transformation of law into a code of wealth and economic phenomena; put differently, the just has become what is in accordance with economic postulates and necessities. 126  In the end, according to Osman, the "aspiration o f the mercantile institution that w i l l imperatively reply to the needs o f international trade i n its normative production"  127  is derived  from this context.  In m y opinion, the end Osman writes o f that remains to be discovered is falsely determined. In particular, the place and real influence of the facts oflife in society i n the juridical  124. 125. 126. 127.  Ibid, Ibid, Ibid, Ibid,  at 411 [translated by author]. [translated by author]. [translated by author]. at 412 [translated by author].  54 order o f the lex mercatoria remain obscure. These facts, it should be admitted, are extremely variable, complex, and more or less understood. Yet, i f their place and influence are really as important as Osman affirms, i n that they participate i n the foundation o f the lex mercatoria, it is difficult to conceive that they could be concentrated and synthesized i n this raison d'etre o f the needs of international trade and continue to grow i n all their possibilities. In other words, the enormous reduction operation that compresses the facts of life in society into this raison d'etre risks diminishing their scope unduly, substantially stripping them o f meaning and, consequently, preventing their full and complete evolution.  Moreover, to affirm that the lex mercatoria rests essentially, if not exclusively, on economic considerations and to subordinate its legitimacy to its conformity to the needs o f international trade takes the search for ends onto shaky ground. In any event, it is important to bear in mind that identifying the needs is one thing; understanding and justifying why they must be satisfied is another. A s well, comprehension and justification of this why cannot be exact and rigorous without opening up towards what it could be convenient to call a totality o f motives and considerations. The arguments put forth by Osman tend i n a different direction. Instead o f opening up the lex mercatoria towards a whole, it closes it around a single subgroup, that o f economics. Furthermore, this sub-group is said to be exclusive: it keeps at bay anything that is not bound up with its nature. Here there is a tendency to regression, to an opposition and separation that contrasts with the idea o f the encompassing structure as defined by Horkheimer. To respond i n the words o f L . Josserand, written in precisely the analysis Osman refers to, this tendency is symptomatic of instrumental thought. In fact, Josserand considered that the unilateral  55 juridical movement towards the economy is accompanied by the overshadowing of an ideal and a spiritual force in favor o f an excessive materialism and o f a mechanization o f l a w .  128  For my  part, I deem it sufficient to put forward the hypothesis that, in the absence o f close communication between economics and that which is outside o f it, the needs of international trade can be linked at best only very tenuously to an end.  128.  L. Josserand, "Vers un ordre juridique nouveau" (1937) Dalloz Ch. 43.  56 C h a p t e r 2:  A.  Values  T h e context of discovery  The context o f discovery in relation to the values o f uniform law reveal four primary norms: liberty, wealth, utility and justice. They occur, i n the reasoning on the context o f discovery, i n many arguments centered respectively on the concrete intention (the real choice) of the parties, growth, maximization o f interests, and equality and cooperation between parties.  In contrast to the type of demonstration I undertook relating to the context of discovery of the principles o f thought, I w i l l here proceed in two steps. I w i l l first develop several propositions characteristic o f the way each argument is presented in the discourse o f uniform law. This synthesis - placed i n italics - w i l l enable us to eventually attain a plausible anticipation of the sense and the scope o f the corresponding value.  129.  129  I am relying on the E . Bloch's comments on " L a conscience anticipante", inLe Principe (Paris: Gallimard, 1976) at 6Iff.  Esperance,  57 1.  The value of "liberty": The argument of the concrete intention (real choice) of the parties  "[I]n order to define the rules of the contracting game, we mustfirst identify the values CISG seeks to further by enforcing contractual promises in the first place. " ° For M. Van I3  Alstine, the resolution of this problematic resultsfromtaking consciousness ofthe respect given to the real choice of the parties by the Vienna Convention. This respect, which is in a sense supreme, makes the argument of concrete intention the Griindnorm of the Vienna Convention, crystallized specifically at article 6. ' In addition to the following consequence that it 13  "should...be abundantly clear [that] the agreement of the parties stands at the very top of the Convention's hierarchy norms, "  132  Van Alstine deducesfromthe argument different effects with  respect to the formation of the sales contract: i) the determination of the obligational content fundamentally depends on an analysis of the intention of the parties; ii) as a corollary, a quasiunlimitedflexibility prevails as to the manner in which proof of this intention can be provided; iii) the fact that the approach of State law is "highly particularized"  133  reveals, for its part, an  ambivalence, if not a mistrust, towards other modes of analysis founded on objective or normative criteria; iv) the interpretation and the application of State law must avoid being rigid or prescriptive to the point of interfering with the manifestation ofthe real choice of the parties.  130. 131. 132. 133.  M . V . Alstine, "Consensus, Dissensus, and Contractual Obligation Through the Prism of Uniform International Sales L a w " (1996) 37 V a . J. Int'l L. 1 at 37. "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions." Van Alstine, supra note 130 at 83. Ibid, at 67.  58  Behind the argument of the concrete intention of the parties is found the attachment o f uniform law to the value o f liberty. exercise o f rational action.  135  134  In a general way, this attachment refers to liberty as the  This conception o f liberty relies upon a distinction between  intentions bound up with individual actions and the cognitive capacities o f individuals. A c t i o n follows from the intentions particular to the individuals, while knowledge can be constituted as a common end that imposes itself on every one. It is so because knowledge is presumed to be developed on the basis o f facts that are exterior to thought and that are not dependent upon it. This permits one to judge the conformity o f belief to facts. It is otherwise for action: subject to desires, passions, it depends on a variety o f characteristics and situations, with the result that individuals do not share the same tastes and interests. From this distinction is derived the duality of ends and means. Ends are dependent on subjective impressions tied up with the tastes o f individuals and cannot as such be reduced to an external unity. A s for the means, they could be numerous, of a comparable pertinence in relation to the desired effect, or subjected to subjective preferences. Nonetheless, because they are the object o f knowledge, they remain objectively available and therefore capable o f founding an intersubjective unity. Human action is thus understood. W e do not discuss the tastes o f individuals, which are essentially divergent. However, in judging their efficiency, or in other words their rationality, we are interested i n the  134. 135.  D. P. Chattopadhyaya, Knowledge, Freedom, and Language: An Interwoven Fabric of Man, Time, and World (Delhi: Motilal Banarsidass Publishers, 1989). M . M . Carrilho, Rationalites : Les avatars de la raison dans la philosophic contemporaine (Paris: Hatier, 1997); P. Moessinger, Irrationalite individuelle et ordre social (Geneva: Droz, 1996); D. P. Gauthier & R. Sugden, Rationality, Justice and the Social Contract: Themes from Morals by Agreement (Ann Arbor: University of Michigan Press, 1993).  59 means they use to satisfy these ends.  How, i n this perspective, do we envisage the role given to society? The basic postulate consists of admitting that any action is undertaken in order to assure the greatest benefit with the least hardship, independently of the objectives that are chosen. Everyone seeks good and wants to avoid e v i l .  136  Human action is strictly indissociable from this union o f two opposite poles:  satisfaction and dissatisfaction. This stems from the fact that human beings have desires and needs, that is to say, they are faced with the possibility o f lacking something, but also with the possibility of satisfying this lack by action, in a manner which is nonetheless always incomplete and without ever being able to hope for its absolute fulfillment. Desire and needs thus have scarcity as a corollary. A n d scarcity is a potential source of conflict. In fact, it is not certain that attempts to go beyond needs w i l l be realized on the basis o f an agreement between the individuals concerned. O n the contrary, whether because o f the competition entered into to obtain a scarce resource, or because o f difference in taste, individuals may not agree upon the nature o f the distributions to be made. Yet, because o f the instability, the insecurity and the discouragement that it produces, conflict itself increases scarcity. Thus, the role o f society w i l l be to lessen tensions and reduce scarcity i n assuring the effective use o f rights, the transfer o f rights by consent, and the fulfillment o f promises. Given their interest i n society's adequately filling this role, individuals w i l l be induced to adopt a certain type of altruistic attitude. They w i l l know that a healthy reciprocity among them w i l l help create a peace favorable to overcoming  136.  R. Chappuis, Les relations humaines : La relation a soi et aux autres (Paris: Vigot, 1994).  60 scarcity.  Accordingly, the pacification o f society, an objective intended to ensure prosperity, presupposes a general agreement on the rules concerning the enjoyment o f rights, o f their free transfer and o f the guarantee o f promises.  137  M o r e specifically, these rules are declaratory o f  individual liberty in two respects: first o f all, in the enjoyment of the product o f one's activities and, secondly, i n the transfer of goods according to the convenience of each person, which is the opposite o f constraint and permits the satisfaction o f personal interests. In the realm o f prosperity, this liberty is understood as follows: each person chooses to work or to produce, knowing that the fruits o f his labor or his production w i l l not be taken away from him; and each person, i n the absence o f unanimity, is not inclined to work or to produce freely for others. Globally, such a society based on the liberty o f exchange w i l l be a place of prosperity, not only because of the free choice of activities, but also because of the complementarity that permits the practice o f exchanges.  If it is admitted that a society is composed o f individuals who go about their business according to their interests, and that the activities o f these individuals can be complementary, then there arises the problem o f the connection between the different activities. Transfer by agreement permits exchange, which ensures complementarity on the basis o f the respect o f rights. However, given the fact that society is the playing field where different needs are  137.  A . P. Hamlin, Ethics, Economics and the State (New York: St. Martin's Press, 1986).  61 expressed or different capacities that are not known to everyone are brought to light, there may be a lack o f information about what must be done. In the absence o f a complete and integral agreement, there is no assurance that the goods produced w i l l be useful to certain people. Furthermore, no one is assured o f finding what he wishes to obtain. Again, complementarity can imply a loss o f autonomy and thus a dependence upon certain goods produced by other people. H o w can we render these various activities coherent, when the general rules do not describe nor prescribe the content of individual actions that are to be undertaken? It is up to economic activity as such to fulfill this informational role, and consequently the role o f connecting the activities in general into a common and operational p l a n .  138  In what way can it act as a substitute for the  absence of planning and organization in society and become a means of communication capable of provoking the necessary adjustments, as the case may be? Economic activity solves the problem o f liaison by permeating itself with a guiding thread that is to be considered dominant and o f universal import: the search for wealth.  138.  J. M . B u c h a n a n , The Economics and the Ethics of Constitutional Order ( A n n A r b o r : U n i v e r s i t y o f  M i c h i g a n Press, 1991).  62  2.  The value of "wealth": The argument of growth  "The commercial policy offostering free international trade is the raison d'etre for harmonizing contract law. "  ,39  Uniform law is not an end in itself. Its legitimacy lies in various  basesfor justification. The most important of them, according to H. Honka, resides in the growth in volume of economic activities that result from the process of uniformization. The argument of growth is therefore intrinsically bound up with uniform law. As such, the association between the development of trade and the existence of a unique juridical regime is not without historic precedent. The lex mercatoria of medieval Europe partook of this spirit: the full and entire exercise of liberty in commerce implied, there too, the creation of an identical juridical space exemptfrom barriers to commercial activity. However, the present situation is distinguished by the magnitude of the phenomenon and a greater insistence on the efficiency of uniformization in the economicfield.On the one hand, the idea that the Vienna Convention (for example) brings together most ofthe world's commercial partners, in spite oftheir social, economic andjuridical differences, is a leitmotiv of current uniform law. Adherence to uniform law, whether explicit or implicit, benefits from a snowball effect: we adhere to it, notably, because others did so before us.  N0  139. 140. 141.  On the other hand, uniformization has become a many-sided reality.'  41  It occurs under  H. Honka, "Harmonization o f Contract L a w Through International Trade: A Nordic perspective" (1996) 11 Tul. Eur. & Civ. L. F. 1 H a t 116. K. Sono, " U N C I T R A L and the Vienna Sales Convention" (1984) 18 Int'l Law. 7 at 14. H . P. Glenn, "Harmonization of Private L a w Rules Between C i v i l and Common Law Jurisdictions" in Contemporary Law: Canadian Reports to the 1994 International Congress of Comparative Law (Cowansville: Editions Y v o n Blais, 1995) at 79.  63  various guises, which is testimony to its versatility and its likelihood ofensuring growth, whether it intervenes at the level ofpublic law or private law, in the matter of economic integration or simply on an individual basis.  The argument o f growth permits uniform law to promote wealth as one o f its values.  142  This second value intervenes on the basis o f reasoning that unfolds thus: If in society we constantly had to arrive at a unanimous agreement concerning which activities to undertake and which needs to satisfy, nothing or practically nothing would ever be accomplished. Possibly unanimity does not exist because there are irreducible differences as to what to do, or because o f the practical obstacles that would prevent us from defining agreements on everything that is to be done, or for some other reason. Nonetheless, the absence o f a determination regarding all activities and needs and the inability to obtain full information about them do not lead to chaos. What is important is to permit the repeated exercise o f these complementarities through exchange, which reveals a partial agreement each time. A n d the sum o f the partial agreements points to a functional system because it is animated by a modus vivendi: the individual and the collective both seek an improvement i n status, translated mainly into the search for increased wealth.  H o w can we come to identify and to take for granted this modus vivendi, this "interest that all peoples have, particularly those o f developing countries, i n broad development o f  142.  A. K. Sen, Choice, Welfare, and Measurement (Cambridge: MIT Press, 1982); R. 0'DormQ\\,Adam Smith's Theory of Value and Distribution: A Reappraisal (New York: St. Martin's Press, 1990).  64 international trade?"  143  The answer can be found in a postulate o f an epistemological nature: the  understanding of a phenomenon is made easier by the existence of causes that are more important than others, which renders secondary or negligible the study o f less powerful factors. Furthermore, the separate examination o f the more important causes permits their grading and thus the determination o f the predominant cause i n relation to a phenomenon or a social field. It thus becomes possible to act as if, in this field, this single cause intervenes, even i f some o f the details are false. Abstraction permits one to accede to a truth as a whole, not in detail.  144  Put  differently, from the body of phenomena that it considers, abstraction w i l l affect reality, even i f this is not so from the point o f view o f the particular. To abstraction i n this method is added deduction: thus, by separating out a typical cause, we can observe the consequences this cause w i l l have on subsequent facts and manifestations i n which it may intervene. The method that results is imperfectly predictive, because o f its inability to grasp the totality o f particular phenomena,  145  but it remains indicative o f the trends that express the constancy o f the  predominant cause across variations i n detail. In the instance under study here, i f the motivations for action are viewed as a play o f forces in competition and opposition, the value of wealth then represents the most frequent human force, whatever the contrary influences. Wealth, because o f disturbances, cannot explain all situations, only most o f them, and even then only as a predominant force i n comparison with other existing values, which remain present.  143. 144. 145.  Nations Unies, Loi type de la CNUDCI sur le commerce electronique et Guide pour son incorporation 1996 (New York: Nations Unies, 1997) at 1 [translated by author]. A . Quinton, The Nature of Things (London: Routledge, 1973). J. Vuillemin, La logique et le monde sensible: Etude sur les theories contemporaines de I 'abstraction (Paris: Flammarion, 1971).  65 This dominating and universal passion enables one, i n tracing a logic o f uniform behavior, to go beyond the differences o f taste, the plurality o f values attached by different people to different goods, and the impossibility of determining objectively and intersubjectively the value o f a good. This logic is translated by the principle o f the unity o f the market price for a good.  146  Thus, i n the presence o f many buyers and sellers for a given good, we could imagine  that there w i l l be a plurality o f prices, according to the interests o f each person. However, the existence o f the value o f wealth imposes unification. In fact, it enables one to predict that the seller, wishing to obtain the highest possible price for a good, w i l l only sell it to the person who offers the most. Reciprocally, the buyer, wishing to pay the cheapest price, w i l l turn to the person who is capable o f offering him this price. So, from the interplay o f supply and demand comes a tendency to establish a single price, which, for the sellers, w i l l be the highest price possible. A s for the buyers, none w i l l find a lower price and none w i l l be interested i n offering more than this price. The egoism at the heart o f these exchanges can be called normal: it is simply a psychological disposition that pushes everyone to follow his own interests when they are not directly harmful to others, from lack o f unanimity i n the planning o f activities and the division of needs. The unifying capacity o f wealth is therefore quite considerable. It succeeds i n combining a diversity o f interests i n a measure which is recognizable by all and acceptable for all.  The general equilibrium to which wealth contributes, with the help o f other values, is  146.  R. M. Starr, General Equilibrium Models of Monetary Economics: Studies in the Static Foundations  of Monetary Theory (Boston: Academic Press, 1989); A. Lapidus, Le detour de valeur (Paris: Economica, 1986).  66 characterized by its dynamism.  147  In fact, the search for the best equivalence between the ends  and the means necessarily opens up different combinations. N o w , innovation has a dual character w h i c h is i n complete opposition to immobility. It is marked first o f all by discontinuity. B y definition, innovation cannot come from some objective method; it is therefore not subjected to regularity i n the periodicity o f its manifestations. It also possesses the faculty of eliminating old forms and processes: the new competes with the old until it replaces it. Discontinuity and elimination are liable to create an unequal rhythm o f social evolution, a rhythm made up o f growth, depression, profits and losses. The potential or actual instability that risks appearing as a result is nonetheless viewed positively. It gives birth, among those who suffer from it or who fear suffering from it, as well as among those who sympathize with the problems o f others, to a renewed wish for stability and a return to equilibrium and wealth. In short, new combinations, in spite o f their negative repercussions, are ultimately beneficial. They are part o f a continuing effort to create wealth i n the most satisfying manner possible, and they are valued for the utility that they represent i n this respect.  147.  E. R. Weintraub, General Equilibrium Analysis: Studies in Appraisal (Cambridge: Cambridge  University Press, 1985); A . K . Dixit & V . D. Norman, Theory of International Trade: A Dual, General Equilibrium Approach (Welwyn: J. Nisbet, 1980).  67 3.  Thevalue of "utility": The argument ofthe maximization of interests  "[CJontract practice is the key to understanding the economic properties ofcontracting that are necessary to work out sensible uniform lawsfor commercial purposes."  148  At the outset,  this postulate emerges, according to R. Amissah, within the framework of surrounding globalization. If it is true that "globalization is unstoppable, "  N9  it remains to determine how to  optimize the repercussions of this phenomenon. For Amissah, it is commercial contractual practice, because of its capacity to innovate, that is the most instructive. Law only intervenes afterwards, in order to support the practice.  150  More specifically, under the phrase "autonomous  contract", Amissah conceptualizes the relationship between commercial reality and uniform law that is likely to obtain maximization ofsoughtfor interests. This concept is laid out along three axes, as follows: "i) The 'autonomous' contract as an expression of the will that 'governs' international commerce.... ii) The 'autonomous contract' as seeking the means to transcend national boundaries.... iii) The 'autonomous contract' designed to be virtually self-contained and 'self-governing. '"  /J/  These axes trace what it would be convenient to call the prospective of  uniform law, a prospective that is not to be evaluated on a technical level alone. In fact, it is ideologically supported by an international normative consensus founded principally on liberalism. According to J. Wiener, it contains a common set of principles that lay "the  148. 149. 150. 151.  R. A m i s s a h , " T h e Autonomous Contract", online: University o f Tromso <http://ananse. irv.uit.no/trade_law.. .s.Contract.03.10.1997.Amissah.html> M . L. Cattaui, "The global economy: A n opportunity to be seized", online: Business World <http ://www. ice wbo. org/html/globalec .htm>. R. Coase, "Industrial Organization: A Proposal for Research" in The Firm, The Market and The Law (Chicago: University of Chicago Press, 1988) at 57. Amissah, supra note 148.  68  foundation for the harmonization and unification activities, which, in turn, is a symptom of the larger, globalizing force of capital."  152  Uniforrn law, through the argument of the maximization of interests, reveals its approval of the value of utility. A t the same time, it finds itself adopting a consequentialist position:  153  the  justification o f actions taken directly or indirectly, according to uniform law, resides in their consequences, that is to say i n the state of things produced by these actions. In other words, we w i l l judge the virtuousness or the badness o f an action from the good or bad nature of its consequences. A n d this justification, or this good or bad quality, w i l l be associated with the idea of the maximization o f happiness or the welfare o f humanity, which can be reduced to a few hypotheses and deductions: no one, outside o f coercion or trickery, may increase wealth other than by satisfying interests; the search for the maximization of wealth urges producers to try to satisfy the most remunerative interests, that is to say those which users want the most, and thus to maximize their satisfaction; furthermore, users obtain the goods that they desire at the lowest prices among those that are offered; thus there is a harmony o f interests and, consequently, an  152.  153.  J. Wiener, "The Transnational Political Economy: A Framework for Analysis", online: University of Tromso <http://ananse.irv.uit.no/trade_law...or.Analysis.Jarrod.Wiener.UKC.html>. See also Commentary 1 on Article 1.1 of the Unidroit Principles, supra note 48: "The principle of freedom of contract is of paramount importance in the context of international trade. The right of business people to decide freely to whom they will offer their goods and services and by whom they wish to be suplied, as well as the possibility for them freely to agree on the terms of individual transactions, are the cornerstones of an open, market-oriented and competitive international economic order." D. R. Mapel & T. Nardin, "Convergence and Divergence in International Ethics" in T. Nardin & D. R. Mapel, eds., Traditions ofInternational Ethics (Cambridge: Cambridge University Press, 1992) at 297.  69 optimization o f collective happiness.  154  A s for wealth, this form o f utility plays an essential role i n the linking and coherence of activities that take place i n a society.  155  These activities not only bind the interests o f two  isolated partners, who are part o f a world that knows nothing whatever about their actions. O n the contrary, even i f it happens that these interests have no effect on those of third parties, it also happens that transactions, without any formal relation between them, can influence one another. These are externalities. These may be positive, or favorable to the interests of some or all people. In this respect, they do not cause any particular difficulties and they are part of the good side o f life. O n the other hand, negative externalities create a considerable potential problem. In fact, i n accordance with liberty and wealth, a transaction presupposes i) the common initiative o f contractants who assert their w i l l and come to agreement after negotiation; ii) the precise and unequivocal definition of the object of the transaction; and iii) a common evaluation of the object of the transaction. Yet the externalities are not the result of a voluntary common approach; they are endured. Furthermore, their limits are not defined with precision, as it would be practically impossible to take a census o f everybody affected by externalities. Finally, insofar as these externalities are unilaterally endured, they cannot be the object o f a common evaluation by the contractants. In this context, could it be that negative externalities create such a distortion that they push society from the pacific field of exchange to the field o f conflict and risk of coercion?  154. 155.  J . Riley, Liberal Utilitarianism: Social Choice Theory and J.S. Mill's Philosophy (Cambridge:  Cambridge University Press, 1988). J . Elster & J . E. Roemer, Interpersonal Comparisons of Well-Being (Cambridge: Cambridge  University Press, 1991); R. E. Sartorius, Individual Conduct and Social Norms: A Utilitarian Account ofSovial Union and the Rule of Law (Encino: Dickenson Pub., 1975).  70 It is precisely utility that is called upon to undertake the task o f eliminating this risk by tracing a twofold path. The first consists of properly grasping the meaning and scope of utility in relation to the abovementioned question. Utility corresponds to that which is chosen or preferred. It does not designate a quality associated with a good or a service, but the attraction that this good or service may represent for a person. The attraction depends upon a satisfaction that this person may derive from it (whatever the degree of this satisfaction), which makes up the ingredient that is the basis o f happiness. The second path introduces the market, which possesses the virtue o f permitting the convergence o f all factors - including negative externalities - in a quantified measure that takes the form o f an exchange price. Certain factors probably look undesirable i n view of the necessity of maintaining social harmony and peace. However, they are ironed out in view o f the evidence o f a common interest for a quantum, money, which thus represents the medium o f unification o f all the variants o f utility.  The conception o f society which is conveyed by utility can be further developed by stating that its ultimate locus of value is the individual.  156  The reason is simple: it is individuals,  not communities, who can feel happiness or pain, see their hopes satisfied or unsatisfied, and so on. It is possible to think o f a community as wishing something, but this can always be brought back to, and broken down i n light of, the individuals who are part o f this community. Such a conception does not mean that communities are useless. It is obvious that the welfare or happiness of the individual depends, in varying degrees and following diverse modalities, on his  156.  J.J.C. Smart & B. Williams, Utilitarisme: Le pour et le contre, trans. (Geneva: Labor, 1997); D. H. Hodgson, Consequences of Utilitarianism: A Study in Normative Ethics and Legal Theory (Oxford: Clarendon, 1967).  71 relations with the community o f which he is a member. It remains that the value o f a community does not represent more than the sum o f the respective values o f the individuals that compose it. From this, the primary function o f the community, i f there is one, consists o f protecting and supporting, i n one manner or other, the individual, a legitimate function because it constitutes the most efficient manner of promoting general welfare. But what happens i f we judge that the protection and help offered by a community do not adequately take into account its mission to offer the most efficient promotion possible o f the general welfare? This problematic is concretely evident i n the insurmountable tension that prevails between two modes o f interpretation: the utility o f the act and the utility o f the rule. The first mode puts the emphasis on the act itself. The justification o f an act depends entirely on circumstances: it w i l l be correct i f it maximizes utility, regardless o f whether or not it conforms to otherwise pertinent rules. The second mode interprets utility on the basis o f norms and principles established by the community. It takes for granted that the maximization o f utility comes from the generalized observation o f these norms and principles. The correct act is thus that which respects these norms and principles, even if, i n a particular case, it does not attain the obj ective o f maximization.  157  But no matter how this tension  is displayed, uniform law adds a fundamental modality to the search for general happiness: it wishes to maximize happiness on the condition that this is done in an equitable manner.  157.  D. Regan, Utilitarianism and Co-operation (New York: Clarendon, 1980).  72 4.  The value of "justice": The argument of equality and cooperation between the parties  "Justice and equity can and should be considered as the essential nuclei of a community's juridical and economic life, especially in light of the dynamic developments occurring in the modern commercial world. "  15S  In asserting this principle in a study of the  principles ofUNIDROIT, H. Veytia reiterates uniform law's concern to ensure an equilibrium of forces and benefits between parties, and ensure also that they collaborate. Discarding a certain image whereby the international sphere is the exclusive domain of experienced professionals in business relations, who have access to adequate resources and are experienced in the rules of good conduct, uniform law here recognizes the inevitable existence of unequal situations. It expresses its concern with this subject, underlined in terms of the search for a 159  contractual justice, in the following elements: i) Public order: certain rules, provided for by uniform law itself or by national laws, have an imperative character susceptible of remediating certain forms of contractual injustice.'  60  ii) Goodfaith: charged with meaning, it deploys its possible interventions in many areas. For example, concerning the formation of contracts, good faith is a cornerstone of the duties of  158. 159. 160.  H . Veytia, "The Requirement of Justice and Equity in Contracts" (1995) 69 Tul. L. Rev. 1191 at 1206. M . J .Bonell, An International Restatement ojContract Law: The Unidroit Principles of International Contracts Law (Irvington: Transnational Juris Publications, 1994) at 90. See, for example, article 1.7 of the Principles: "(1) Each party must act in accordance with good faith and fair dealing in international trade; (2) The parties may not exclude or limit this duty."  73 confidentiality' ' and loyalty,' just as much as it justifies an exception to the principle of the 6  62  revocability of an offer.  163  iii) A just contractual equilibrium, which is an objective that the rules governing excessive benefit, hardship, the abusive clause and the exonerating clause contribute to.  164  iv) The promotion ofthe reasonable: contractualjustice requires, as well, the satisfaction ofthe normal and predictable expectations of the parties.  165  The  argument o f equilibrium and cooperation accounts for the presence o f the just i n  the context of discovery of uniform law's o w n values. What interpretation can we draw from this presence? This creates a considerable challenge, because justice always resists ready-made solutions, i f only because o f the diversity and contradiction o f its many images. In the same manner, it would be risky to claim that uniform law clearly establishes a mature and proven conception o f justice. The exercise is nonetheless still valuable i f we imagine it as the development of a map. A map furnishes an imperfect sketch of the reality that it projects, but the  161.  162. 163. 164.  165.  See Principles, art. 2.16: "Where information is given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose that information or to use it improperly for its own purposes, whether or not a contract is subsequently concluded. Where appropriate, the remedy for breach of that duty may include compensation based on the benefit received by the other party." See Principles, art. 2.15 (2): "However, the party who negotiates or breaks off in bad faith is liable for the losses caused to the other party." See Principles, art. 2.4 (2) (b): "However, an offer cannot be revoked, i f it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer." See, for example, Principles, art. 7.1.6: " A clause which limits or excludes one party for nonperformance or which permits one party to render performance substantially different from what the other party reasonably expected may not be invoked if it would be grossly unfair to do so, having regard to the purpose of the contract." See Principles, notably art. 4.1 (1): " A contract shall be interpreted according to the common intention of the parties."  74 information it provides is o f value nonetheless. W e must simply avoid looking to it for information that it does not possess and that it does not claim to possess. That map that enables a definition o f the justice o f uniform law should be viewed this way.  The first kind of information it can yield concerns the raison d'etre of justice. W h y must we fear injustice and, correlatively, promote justice?  166  T w o reasons, one cognitive and the other  normative, can be adduced. First o f all, injustice perturbs predictable models o f relations that individuals create i n order to harmonize their relations and make them functional; it thus menaces the whole logic o f their behavior. In fact, this logic relies upon the possibility o f predicting the fulfillment and consequences o f actions. Furthermore, injustice reveals a disdain or a low esteem for others. But this threatens their identity, which is an essential element of their development.  The second kind of information relates to the definition and the content of j ustice, which bring us back to needs, equality and merit. However, this apparent simplicity hides a tangled set of rules.  167  Equality may be subdivided into equality of opportunity (to be re-subdivided between  simple expectations and effective means o f obtaining something), satisfaction, and treatment. Merit is sometimes linked to effort, sometimes to productivity or talent. Needs oscillate between subjectivity and objectivity. These rules are often combined and mixed together i n a single judgment. Furthermore, they are often contradictory: the equality o f satisfaction presupposes a  166. 167.  P. Ricoeur, Le Juste (Paris: Editions Esprit, 1995). W. B. Griffith, "Equality and Egalitarianism: Framing the Contemporary Debate" (1994) 12 C. J. L. J. 5; D. Rae, Equalities (Cambridge: Harvard University Press, 1981).  75 lesser significance being assigned to equality of opportunity; to ensure the fulfillment of this last element may require that we set aside equality o f treatment. Added to this is the delicate determination of who are the parties concerned: is this a relationship between individuals of one particular population, or between different groups, communities or entities?  Nonetheless, at least three conceptions o f a just contract with respect to uniform law may be deduced from these considerations. Each articulates differently the inherent dimensions of a contractual relationship: contractual liberty, the validity of the contract, the responsibilities of the parties and the impact of prescription.  168  A m o n g these conceptions we find voluntarism,  which equates justice with the expression o f the w i l l o f the parties. Once this w i l l has been expressed, the contract dictates its law to the parties. A s to validity, this means there is no unilateral right of rescission. It also means the responsibilities are those the parties have defined and damages w i l l not vary according to the means o f the party at fault. Finally, the impact o f prescription is of little consequence: the passing of time does not suppress nor create obligations outside of the common w i l l of the parties. In opposition to voluntarism we find providentialism. It rests upon a central idea that a person bound by a contract who is judged to be weaker or less well informed must be protected in all circumstances. This objective transcends both the force o f the contracted obligations and the principle o f the pre-established division o f the responsibilities. Rights are born and disappear without being bound to the initial intentions  168.  R. E . Barnett, "Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract" (1992) 78 V a . L . Rev. 1175; I. Macneil, "Relational Contract: What We D o and D o Not Know" (1985) Wis. L . Rev. 483.; J. M . Feinman, "Critical Approaches of Contract Law" (1983) 30 U C L A L. Rev. 829.  76 expressed by the parties. Thus the validity of the contract remains subject to a more systematic right of rescission. Symmetrically, it is taken for granted that the individual should be protected against the consequences of his acts and that the compensation for the real value of the prejudice is necessary even i f this is contrary to the explicit agreement o f the parties. In addition, prescription plays an important role: prolonged usage creates a right, i n spite o f the absence o f agreement on this subject. Finally, the conception called finalism leads the analysis to the consequences o f the execution of the contract incurred by the parties. More than the w i l l of the parties, it is the welfare o f the contractants, the intrinsic values o f things and the evaluation o f the ultimate interests o f society that serve as criteria for a just contract. A s a result, without recognizing a systematic right to rescission, the onerous character of the execution o f a contract for a party might justify that this party be relieved o f his obligations. When a contract directly affects many people in the family circle of a contracting party, these should be authorized to give their assent or impose their veto: one's concern for the consequences of an engagement must win out over the right o f each person to make transactions as he pleases. The same type o f concern prevails i n the sphere o f responsibility, such that the guarantee attached to an object must be made according to the value of this object. Extinctive prescription is not easily given: a debt is a debt, and unless the debtor finds himself in a very awkward situation, he has to pay it. O n the other hand, acquisitive prescription is tolerated i f it corresponds to a major interest. Thus, this conception cannot be reduced to a simple question o f protection. Rather, it falls back upon the defense and the improvement o f the welfare of the greatest number by weighing the interests at hand, including those of the society as a whole. Furthermore, the degree of cooperation between the parties w i l l oscillate i n the following way. In a rigid contractual view, associated with  77 voluntarism, the degree o f cooperation w i l l be lesser, because the obligations tend to be limited to the precise object o f the contract. The optimal degree w i l l be reached under the flexible contractual perspective o f finalism, where the parties define their obligations by attempting to anticipate the future.  B.  The context of justification  In liberty, wealth, utility and justice, uniform law recognizes values likely to underpin its legitimacy. But what principles and what arithmetic are appropriate to determine the relative weight o f each, and the type o f articulation likely, both i n individual cases and globally, to effectively attain this objective of legitimacy? B y what frame of reference are we able to evaluate the degree with which the objective of legitimacy is attained? This is the role that devolves upon the context o f justification, which corresponds to a sort o f Rule of Law o f uniform law. It presents itself as a norm possessing the greatest influence within uniform law, a norm that exercises a form o f primacy over all others. A s regards values, the context o f justification presents two distinct "tableaux". The first presents the formal content o f the context o f justification, while the second presents the procedure for the determination o f its constitutive values. This dichotomy calls for some comment.  Tableau 1 assembles certain values presented by uniform law as acting as ultima ratio. Clearly this presentation is potentially enlightening in itself. That is why it is important to stop and look at it. However, concretely, this first tableau is more of a sketch than a completed work.  78 This is explained in part by the prominence o f instrumental reasoning and the weak presence o f ends-based reasoning revealed in the analysis o f the context o f justification of the principles o f thought. A s has been shown, this apportionment o f relative prominence to these two kinds o f reasoning has a distinct significance for the role o f values: it renders them subordinate, secondary.  169  O n the other hand, the incomplete state o f Tableau 1 may also be accounted for by  the specific procedure for determining values (see Tableau 2). Nothing guarantees the reliability o f this procedure: it can thus constitute an additional factor in understanding the paleness o f Tableau 1. This is i n itself a sufficient reason, without being the exclusive one, to take an interest in Tableau 2. This tableau is also o f interest because o f the fact that, i n some views, procedure directly influences the degree o f acceptability o f values i n general, a consideration that is also important as regards the values that may be used as a "Rule o f L a w " o f uniform law. Procedure thus assumes fundamental importance. It becomes a value in itself; from this moment on, we should turn our attention to it rather than to its content. In fact, uniform law, particularly i n its State and intermediate versions, assigns considerable importance to the conditions o f the formation o f values i n establishing its own legitimacy. Whatever the reason why this is not reflected in the tableau presenting the content o f values, it becomes necessary to examine the parameters and boundaries o f procedure. Furthermore, an emphasis on procedure permits us to go beyond the inherent immobility of the formal presentation o f values that are taken for granted, by showing how uniform law is capable o f making them evolve.  169.  See Part I, Chapter 1, above.  79  1.  Tableau 1: Content  Depending on the version o f uniform law that is considered, the definition o f content in the ultimate frame of reference w i l l vary. One of the most developed contents belongs to State law and it is to State law that I would like to turn my attention. This is because its origins, as prepared by the United Nations Commission on International Trade L a w ( U N C I T R A L ) , frame a very great body of orientations and measures that have been put forward for a number of years by various agencies and constituent bodies o f the United Nations. This body o f orientations forms a reservoir o f superior and decisive considerations i n the light o f which the legitimacy o f uniform law may be evaluated, whether from up close or far away. Going from the general to the particular, we observe this i n Tableau 1.  First o f all, analyzing the underlying values of the matters covered and the vocabulary used by the Vienna Convention, A . Kastely writes as follows: "Perhaps the most fundamental o f these is the conception o f actors under the Convention as different i n background and circumstances, yet entitled to equal treatment and respect."  170  In the opinion o f Kastely, this  preeminent value of equality provides, together with others, a coherence which is indispensable to the language o f the Vienna Convention.  Secondly, it is interesting to bring to the surface the basic considerations which  170.  A . H . Kastely, "Unification and Community: A Rhetorical Analysis of the United Nations Sales Convention" (1988) 8 Northwestern Journal of International L a w and Business 574 at 594.  80 prevailed at the time o f the creation o f U N C I T R A L , which is at the origin o f the Vienna Convention and other instruments o f uniformization. Initially, they stressed the importance o f international commerce and the conditions of its realization i n the quest for global harmony. The Romanian delegate spoke as follows during the discussion concerning the proposal to create U N C I T R A L , sounding the call o f a destiny to which the world had been summoned:  The development o f international trade, therefore, would meet real needs o f the international community; it would be an essential contribution to the efforts to create...conditions of stability and well-being, which were necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Accordingly, it was necessary to establish rules that would facilitate commercial transactions on the basis o f respect for sovereignty and national independence, nonintervention i n the domestic affairs o f States and mutual benefit. 171  A t the same time, it had become clear that the uniformization o f law could strengthen interdependent developments in international commerce and world harmony. In order to do so, it was necessary that uniform rules be impregnated with, and tend towards, the abovementioned values and ideal. But uniformization was also by its very nature a necessity, given its inherent capacity to eliminate national juridical divergences perceived as obstacles to the necessary growth of commercial exchange. In addition, it became clear both at that time and thereafter that the United Nations and its agencies, including U N C I T R A L , became an appropriate forum in which to ensure there was a junction of uniformization and general welfare, as well as being the forum for the activation o f programs and actions required under the circumstances.  171.  (1970) 1 Y. B. U. N. Comm'n on Int'l Trade L., U. N. Doc. a/CN.9/SER.A/1970 at 54.  81  Finally, what followed these events led notably to the establishment o f a direct link between the Vienna Convention and the general objectives written in the resolutions concerning  the creation of a New International Economic Order that the General Assembly of the United Nations adopted at its sixth extraordinary session . The frame of reference of uniform law thus 172  became more specific than it had been at the time o f the creation o f U N C I T R A L . It appears, however, that the N e w International Economic Order (NIEO) must itself be re-situated i n light of a more recent reflection and a dynamic that culminated, according to J . C . M . Paul, i n an international law o f development (known as I L D ) .  1 7 3  of juridical instruments with respect to development.  174  The I L D confirms the preponderant role According to Paul, the I L D subordinates  the legitimacy o f actions undertaken i n this perspective to the promotion, direct or indirect, o f a development founded on the following principles: people-centered animation, that is, development designed to promote human dignity, capacities, security and welfare; participation: enabling and empowering people to initiate self-reliant and selfmanaged development efforts i n all spheres relevant to well-being; respect and protection o f rights and liberties o f the person; elimination o f forms o f discrimination founded on sex or ethnic background; protection o f the environment and a favorable bias towards avenues o f sustainable development;  172. 173. 174.  See the Preambule of the Vienna Convention, supra note 4. J . C . N . Paul, "The United Nations and the Creation of an International L a w of Development" (1995) 36 Harv. Int'l L. J. 307. Ibid, at 307-309.  82 respect and protection o f cultural diversity; a favorable bias towards the emergence and consolidation o f democratic modes of representation; accessibility of the means necessary for the full efficiency o f the abovementioned principles.  2.  Tableau 2: Procedure  I submit that uniform law conceives its procedure for the determination o f values as a communicative process. This emerges in particular from the functions and attributes that the General Assembly gave to U N C I T R A L at the time o f its creation. In accordance with the report o f the Secretary-General entitled "Progressive Development o f the L a w o f International Trade",  175  the General Assembly articulated the mandate o f U N C I T R A L along various axes  emerging from one or another o f three basic elements o f communication.  176  First o f all, the  leadership and the credibility o f U N C I T R A L were dependent upon its capacity to make to the greatest number the various types o f information relevant to its m i s s i o n .  177  known  This element  of dissemination was followed up, secondly, by another element, broad-mindedness.  178  O n the  institutional level, U N C I T R A L had to be transparent and active with respect to cooperation; on the normative level, it had to encourage participation and sharing i n the development of uniform  175.  Progressive  176.  U.N. GAOR, U.N. Doc. A/6396 (1966). G.A. Res. 2205 (XXI), U.N. Doc. A/6396 (1966).  Development  177.  Ibid, at par. 8(e), (f),  178.  Ibid, at par. (a),  (b).  (g).  of the Law of International  Trade: Report  of the Secretary-General,  21  83 law. Dissemination and broad-mindedness worked together towards the creation o f the third element of communication, which consists of rendering common.  179  The idea of community, i n  fact, was omnipresent in the mandate of U N C I T R A L . Subsequent developments would reaffirm this orientation o f uniform law towards a paradigm o f communication. In her remarkable analysis, A . Kastely shows to what extent the Vienna Convention "is deeply political, fundamentally rhetorical, in its aspirations."  180  This turns out to be necessary for the attainment  of an international community, without which the goal o f uniformization would remain a pure abstraction.  181  The dissemination of information, deliberations, "sense of shared interest,"  182  the  utilization o f discourse, and so on, are all examples o f the modes and provisions belonging to communication that can be drawn from the Vienna Convention and that support the emergence and flourishing o f the sought-for community. A s Kastely affirms, "The text of the Convention seeks to establish...a rhetorical community in which its readers first assent to the language and values of the text itself, and then use the language and values to inform their relations with one another."  183  Having formulated and backed up this initial proposition, let us now examine the communicative procedure characteristic o f uniform law in greater depth.  179. 180. 181.  182. 183.  Ibid, at par. 8(c), (d). Kastely, supra note 170 at 577 [emphasis added]. "There must be an international community of people who perceive themselves as bound together and governed by a common legal system and who have some way to deliberate together over matters of continuing verification and development." Ibid. Ibid. Ibid.  84 The  basis o f the determination and the articulation o f values depends upon the  relationship between procedure and the phenomenon called the antinomy o f truth. This is how A . Wellmer presents this phenomenon i n the perspective o f a communicative paradigm:  When we communicate, present or write something, we inevitably make claims to truth, or rather... claims to truth o f different orders. Thus, i f I do it in a serious manner, I expect that others, whoever they may be, have good reason to agree with what I have affirmed, on the condition that they understand what I said and possess sufficient information, competence, and judgment, etc. In this sense, I presuppose that my claim to validity lends itself perfectly to intersubjective agreement founded on good reasons. But i f it happens that someone opposes what I affirm with the help o f solid arguments, than I have to take back my claim to validity or at least admit that doubt is justified. A l l of this may seem quite trivial, but we know that it is often such trivialities that are at the heart o f some of the most interesting philosophical controversies. I f we undertake to reflect on what makes a good argument or an irrefutable proof, we easily lose our footing; especially when we realize how difficult it may be to reach agreement i n this field. Given the fact that there are irreducible disagreements among the members of various linguistic, scientific, or cultural communities concerning the possibility of justifying truth claims about the existence o f schemes o f argumentation or the inherent persuasive force o f empirical proof, it may be appropriate to ask whether we can even believe that adequate schemes and persuasion, that is, an objective truth that would be acceptable for the problems i n question, exist - somewhere. O r else should we rather admit that truth is always "relative" to cultures, languages, societies, even individuals? I f the latter solution - relativism - seems inconsistent, the first - the "absolutism" of truth - seems necessarily to entail metaphysical presuppositions. This is what I call the "antinomy o f truth." 184  What is the position o f uniform law in relation to the antinomy o f truth? One way o f looking at this is to affirm that it is enclosed in it. Thus, its values would be determined and  184.  A . Wellmer, "Verite, contingence et modernite", in J. Poulain, De la verite : Pragmatisme, cisme et relativisme (Paris: A l b i n Michel, 1996) at 177-178 [translated by author].  histori-  85 weighed among themselves through avenues and forces tending, sometimes toward absolutism, sometimes toward relativism. In support of absolutism, it would be possible to invoke arguments that vigorously refute any form o f ethnocentrism or pluralism in the interpretation o f uniform law, or those that hold to a hard and fast obj ective of uniform interpretation. essentially skeptical arguments of the idea of uniformization,  186  185  O n the other hand,  or those that hesitate to recognize  the simply functional character o f uniform law i n the present circumstances, could serve to illustrate support for relativism.  187  Nonetheless, I believe it more proper to affirm, on the basis  of the interpretation o f two sections o f Kastely's analysis, that uniform law more often uses strategies to escape the antinomy o f truth. What are they? A n d are they well founded?  The first section may be illustrated with this quotation:  The community created and promoted by the Convention is...thoroughly consensual and artificial. This approach is quite different from the view that human communities are natural, organic, or inevitable.... The Sales Convention, i n contrast, begins with the assumption that a community may be created by choice and agreement. 188  In strategic terms, a serious interpretation o f the affirmation would consist o f the  185. 186.  187. 188.  For example, see V . S. Cook, "The U . N . Convention for the International Sale of Goods: A Mandate to Abandon Legal Ethnocentricity" (1997) 16 J. L. & Com. 49. See the comments of J. Honnold about the legal realists in "The Sales Convention in Action Uniform International Words: Uniform Application?" (1988) 8 J. L. & Com. 207; also, F . - M . Bannes, "L'impact de l'adoption des Principes Unidroit 1994 sur l'unification du droit commercial international : Realite ou utopie?" (1996) R.R.J. 933. See the comments o f A . Rosett in "Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods" (1984) 45 Ohio State L a w Journal 265. Kastely, supra note 170 at 588.  86 following: The members of this consensual and artificial community are endowed with various social, economic and juridical systems, as recognized i n the preamble to the Vienna Convention.  189  This differential element may be interpreted as signifying that there is not,  overall, an obvious unanimity o f values or o f the hierarchy o f values. Thus, the challenge consists i n asking what general principles could the members o f the international community agree upon, whatever their differences of views and of interests, seeing in such general principles the prerequisites o f a just society. Uniform law must then search for principles everyone can subscribe to, without, for all that, one's having to renounce one's right to put forward one's convictions or orientations. If it were possible to develop principles that offer to each and everyone the greatest latitude to express their preferences and to fulfill their ends without limiting the expression of preferences and the fulfillment of the ends of others, then there would not be any reason such a system could not bring about a consensus. To do so one must still ensure that the members agree, at least implicitly, on certain cardinal values, such as liberty, wealth, utility and justice. H o w are these values to be evaluated? H o w are they tied up with other values? H o w can we attest to the superiority of judgment that is attained thanks to these values, generally and i n each particular case? It is here that both individualism born o f consensualism and abstraction born o f artifice find their true meaning. They invite one to imagine any party (a contractant, a State, a decider, etc.) interested in uniform law as being capable of placing himself in a position o f impartiality. In order to answer the questions above, this party would not have  189.  See, for a similar approach, Rawls, supra note 14 and the following critics: M.-D. Bruttin, Philosophie politique et justice sociale : Une mise en perspective typologique du debat contemporain autour de John Rawls (Geneva: Librairie de 1'Universite, 1999); C. Kukathas & P. Pettit, Rawls: A Theory of Justice and its Critics (Stanford: Stanford University Press, 1990).  87 any vision of his actual and contextual situation, nor that o f others (I can be an other). He would be led, by prudence and following his interest rightly understood, to imagine every possible situation and to mentally place himself, i n good faith, in these situations (I must be this other). It is this "decentering" of the interested party which would permit h i m to choose the best possible values.  From a communicative point o f view, this strategy has one important drawback: by its marked insistence o f the " s e l f , it comes back, finally, to a form o f monologue or, at best, to a dialogue by an interested party, but with himself. In fact, it is important to realize that the best possible is obtained as the result o f a cost/benefit calculation o f interests aimed at attaining the best for oneself, in opposition to mutual welfare. O f course, that this calculation should integrate, and deeply, integrate, the values o f uniform law is not excluded a priori. But i n essence, it can only translate a gentle form o f egoism purged o f concrete empirical interests. Thus it is not required, i n all logic, that the interested party actively inform himself or be informed o f the experience o f others i n order to arouse at least minimal discussion. A t the same time, the abstraction o f the interested party from the position that he occupies i n society does not necessarily lead to the recognition o f the other. It is limited to constraining the interested party to imagine himself as the other, which remains different from forcing h i m to put himself concretely i n the place o f the other. In these circumstances, it is not surprising that Kastely  88 concludes the first o f the passages referred to above by pointing out that "the Convention suggests that the principal motive for joining [the] community w i l l be self-interest."  190  Is it possible to mitigate the communicative inadequacies o f this strategy? Further on in her analysis, Kastely examines common language, the bearer of many values, established by the Vienna Convention, and the "occasions for discussions and deliberations"  191  offered by it.  Her words open the door to another strategy synthesized i n the following passage:  What is called for, in essence, is the development of a jurisprudence of international trade. This is the heart o f the rhetorical aspiration [of the Convention]. Its success.. .directly depends on the achievement of this g o a l . 192  I interpret this statement as follows. Contrary to the first argument, founded on abstract calculation, this one tends towards an ideal speech situation.  193  Here, the attainment o f the best  possible, as well as the mastery o f the differential element, are credited to the community that can best realize the conditions o f an equal participation in discussion and i n deliberation. The whole should facilitate, given the diversity o f points o f view and exchanges, a constant questioning of the existing order at a given moment, and is thus more conducive to progress than the first strategy.  190. 191. 192. 193.  Ibid. Kastely, supra note 170 at 600. Ibid, at 600-601 [emphasis added]. See J. Habermas, De I'ethique de la discussion, trad. M . Hunyadi (Paris: Editions du Cerf, 1992) at 17ff.  89 What is it really, still viewing it from the angle of communication? Everything depends on the effective power for reception, animation and dissemination o f the main tool o f communication o f uniform law that is established by this jurisprudence o f international commerce. B y power, we must understand a real capacity to create an ideal speech situation, which I w i l l outline theoretically. First o f all, circumstances o f interest must be made known to the community i n the terms in which they are experienced, interpreted and evaluated by the interested parties. Each needs the others' stories i n order to understand how they live: this is the primary source of true and mutual understanding. It follows, then, that any interested party may present his arguments himself. These cannot be left to the imagination o f others and become in any manner a prejudice. Finally, because basic sensibilities are not identical for all, the stories and arguments w i l l take on quite different orientations that only full and open types of discussion could conciliate.  194  A t the present time, the general doctrinal trend is to translate the evaluation of the power of the case law o f international trade in terms o f challenges.  195  The novelty o f State law,  combined with the attention drawn, and the challenges uncovered, by its interpretive dimension,  194.  195.  A . A . Moles & E . Rohmer, Theorie structurale de la communication et societe (Paris: Masson, 1986); R. A . Adler & L. B. Rosenteld, Interplay: The Process of Interpersonal Communication (New York: Holt, Rinehart, and Winston, 1983). P. B. Stephan, "The Futility of Unification and Harmonization in International Commercial Law" (1999) 39 V a . J. Int'l L. 743.  90 clearly show that nothing has been won yet.  196  A similar situation prevails in intermediate l a w .  197  A s for the lex mercatoria, its renewal i n today's conditions and those o f tomorrow forces us to admit that it is also i n the process of revising its optic o f communication.  198  In short, the second  strategy put forward by uniform law to escape the antinomy of truth is filled with precariousness and uncertainty. However, I feel that it is now time to reinforce this finding by stating a hypothesis, to be confirmed further on, that the case law of international commerce, even i f it is envisaged in what it presently has to offer that is most dynamic and innovative, w i l l not be able to possess the power required to create an ideal speech situation.  196.  197.  198. 199.  199  See Part IV, preliminary remarks, below. Also, F. Ferrari, "CISG Case Law: A New Challenge for Interpreters" (1998) 17 J . L. & Com. 245; J . O. Honnold, "The Sales Convention: From Idea to Practice" (1998) 17 J. L. & Com. 181. A . M . Garro, "The Contribution of the U N I D R O I T Principles to the Advancement of International Commercial Arbitration" (1995) 3 Tul. J. Int'l & Comp. L. 93; M . J. Bonell, "The Unidroit Principles in Practice: The Experience of the First Two Years" (1997) 1 R.D.U. 30. T. E. Carbonneau, ed., Lex Mercatoria andArbitration: A Discussion ofthe New Law Merchant (New York: Juris Publishing, 1998). See Part III, Chapter 1, below.  91  Final remarks  In this first part, I have explored the background o f uniform law. This exploration was necessary because o f the methodological premise laid out in the introduction, according to which the sense o f the explicit arguments used in the discourse o f uniform law depends on a "deepstructure" - that is to say a reservoir o f assumptions, a background - which has to be exposed to view. In doing this, I have brought to light a series o f little stories, o f philosophic terms, divided into two chapters. The first is devoted to the principles o f thought. It shows that arguments o f good faith, the autonomy o f the w i l l and juridical convergence (the context o f discovery) testify to a uniform law which is subordinate to metaphysical, analytical and simplifying thoughts. It shows, also, that these thoughts interact according to instrumental reason (the context of justification). Chapter 2 describes values. Four arguments are analyzed: those o f the concrete intention o f the parties, o f growth, o f the maximization o f interests, and o f equality and cooperation among parties. They reflect respectively the values of liberty, wealth, utility and justice (the context o f discovery). These values remain subject to a context of justification based on the norms o f an international law o f development (ILD) and a communicative paradigm.  These little stories can be read independently or somehow tied i n with one another. Does their reading "ring false"? If such is the case, it is not abnormal. In fact, we must not forget that, even once extracted from legal scholarship, they form a poly background, that is to say a background which is open to dissonance as well as consonance. What is important is that they  92 be sufficiently insightful and sensible to give the right tone and clearly set themselves apart from the intuitionist route discredited by M . Koskenniemi.  The unraveling operation that we have carried out and the background we have arrived at permit us to be thoroughly conversant with what I have called the conservative consciousness o f uniform law. Having taken this step, it is now possible to proceed with an examination of the strengths and defects o f uniform law, that is to say with its substantive criticism.  93 P A R T II  T H E C O N S E R V A T I V E CONSCIOUSNESS: CRITICISM  F o l l o w i n g the procedural method outlined i n part I, I w i l l now take a moment to formulate some preliminary remarks i n order to properly situate the ins and outs o f the critical analysis o f the conservative consciousness o f uniform law.  Preliminary remarks  The criticism corresponds to the intermediate phase o f the Koskenniemi triptych as adapted for the purposes o f this thesis. The criticism forms the link between the unravelling and the reformulation which complete the tri-dimensional analysis proposed by the author. A s a methodological element, the importance of the criticism could be perhaps assumed, without any further evidence in its favour. A s well, I could also limit myself to a basic level conception o f the criticism and nonetheless permit myself to question several areas o f the conservative consciousness, as well as determine its overall value. M a n y might consider this approach a dangerous one: criticism merits a more in depth analysis, and a deeper examination than that which is proposed by this approach. While being instinctively in agreement with them, I am o f the opinion that this reproach does not, in itself, offer any guarantee o f a constructive analysis. A t the very limit, it may be considered a cliche, an easy position to ascertain, or even a moralizing one. There is thus a great deal of groundwork to cover and to defend i n order to avoid these pitfalls, a task that commands a more direct and particular attention, as it can be stated, "that we are beings whose dignity derives from the persuasive role o f critical reasoning i n our  94 social l i v e s . "  200  In this perspective, the critical vision that I propose is one that exists within the  confines o f the imagination ( A ) . It is in fact a natural development o f the element o f astonishment that underlies this thesis . After having fully explained the nature o f this 201  perspective, I w i l l present what I hope to demonstrate as a result (B).  A.  C r i t i c i s m as l e g a l i m a g i n a t i o n  I w i l l begin with a brief reminder. In the introduction, I situated the impulse at the source o f this project i n the desire to suggest a right answer to the question, why is there an international commercial uniform law rather than nothing?, which little by little transformed itself into an invitation to follow suit to the emerging route o f law and development. This is the case because I am probably persuaded and stimulated by the call o f many- Sautet among themto attempt this exercise and/or naturally attracted to the necessity to undertake it. I have also given several revealing hints as to the magnitude of this entire activity, and the imperative needs for originality and innovation associated with it. But to what point can we hope to satisfy these imperative needs, to see answers overflowing with originality and innovation? In my opinion, this interrogation is pertinent because I am not at all convinced o f the existence o f an innate faculty within the researcher and the individual i n general, to overcome the tragedy that, according to Hegel, consists o f being enclosed upon oneself.  202  This tragedy has many shapes,  and is felt differently from one person to another. It nonetheless obeys a particular logic: it tends  200. 201. 202.  M.C. Nussbaum, "Response: Still Worthy of Praise" (1998) 111 Harv. L. Rev. 1776 at p. 1795 See Introduction, Prolegomenon, above. C. Taylor, Hegel (New York: Cambridge University Press, 1975).  95 to restrain and slow the momentum of the new, this vast horizon where the wealth o f novelty is at its realm. S. K o k i s , for one, admirably described this enclosure that is constitutive o f the personal ethos. It arises, on one hand, from a notion that I would qualify as internal representation. This tenet symbolizes that in the quest for meaning, "everything gets organized around us, not as an objective and abstract reality, but as a personal world, following semantic parameters which we share in a truncated manner with the reality and our fellow creatures."  203  More specifically, the internal representation is the fruit o f ongoing exchanges between the personal world and what surrounds it: the human mind does not cease to structure and reformulate the information that comes upon it. This perpetual exercise o f accommodation and synthesis define what every person lives, what every person is, a definition that can be perhaps  203.  S. Kokis, Les langages de la creation (Montreal: Nuit blanche, 1996) at 18 [translated by author].  96 better conceived "as a narrative rather than isolated moments."  204  In the words o f K o k i s , the  narrative o f every individual takes this shape:  The internal experiences retain a certain substantial permanency, for with the assistance o f linguistic syntax, the often heterogeneous elements o f memory are organized i n a sort o f unitary fashion that evolves as a narrative [...] W e must therefore continually correct the elements o f our history- even the most unusual facts- by adding logical yet often reinforced ties [...] We silence the great contradictions, we alter the meaning of our worst defeats, we embellish it all, and this is how we regain the image that we are indeed masters o f our universe. The false reasonings, the open ellipses, the overwhelming analogies and all sorts o f mythical discourses are abundant i n the inner narrative tissue that we term personal identity. The necessity for a coherent togetherness and the obligations o f syntax are so powerful that even the best o f memories is weakened i n order to soften the corners and enhance the coherence o f the narrative. 205  In this context, the creation consists o f "freeing thought from the ties o f concrete feeling, [which takes place by means of a] process of remoulding facts of human experience."  206  In other terms, the creation resembles to acts o f decentration, o f rearrangement o f what is real, which necessarily implies a certain destabilization, a fracture, an uprooting o f the self, all o f which is done to substantiate the new. In my opinion, this is a key passage, but one that remains preliminary and insufficient on its own, within the confines o f the path o f creation. If it is true that we have to learn to move the pieces o f the jigsaw o f l i f e , as we may understand it to be 207  204. 205. 206. 207.  Ibid, at 33 [translated by author]. Ibid, at 33-34 [translated by author]. Ibid, at 26 [translated by author]. I an drawing, here, an analogy with N . Goodman's celebrated metaphor, Ways of Worldmaking, (Indianapolis: Hackett Pub., 1978) at 31.  97 at any given moment i n time, and risk the unknown for the purposes of discovery, I highly doubt that the level of novelty is maximized when this exercise is limited to a sort of defamiliarization, in the words o f Sousa Santos.  208  1 deem it preferable to see, i n this passage, an opportunity to  develop one's own strength and confidence  209  i n exploring the unknown and a springboard  toward something even more creative. Yet what exactly are we looking to find?  208. 209.  de Sousa Santos, supra note 14 at x. On the importance of confidence in general and in particular as a ferment of the social fabric, see B.A. Misztal, Trust in Modern Societies: The Search for the Bases of Social Order (Cambridge: Polity, 1996). Also, B. Barber, The Logic and Limits of Trust (New Brunswick: Rutgers University Press, 1983).  In my humble opinion, this goal is incarnated through the simple yet nonetheless effective maxim o f I. Prigogine, who states that "the possible is richer than the r e a l . "  210  The  bearing of this maxim is timeless and universal. For now, it can be safely presented as follows:  The possible is richer than the real. Who should know this better than social scientists? W h y are we so afraid o f discussing the possible, or exploring the possible? W e must move not Utopias, but utopistics, to the center o f social science. Utopistics is the analysis of possible Utopias, their limitations, and the constraints on achieving them. It is the analytic study of real historical alternatives in the present. It is the reconciliation o f the search for truth and the search for goodness. Utopistics represents a continuing responsibility for social scientists. But it represents a particularly urgent task when the range o f choice is greatest. When is this? Precisely when the historical social system o f which we are part is furthest from equilibrium, when the fluctuations are greatest, when the bifurcations are nearest, when small input has great output. This is the moment i n which we are now living and shall be living for the next 25-50 years. 211  In comparison with the process o f defamiliarization, the notion o f Utopia supposes a greater detachment, indeed a complete separation between the spirit and experienced reality. It allows for an abandonment toward mental exponential variations, unbeknownst up until n o w .  210. 211. 212.  212  I. Prigogine, La fin des certitudes (Paris: Odile Jacob, 1996) at 230 [translated by author]. Wallerstein, supra note 5at 1254-1255. J . Fourastier, Les conditions de I'esprit scientifique (Paris: Gallimard, 1996) at 54; K. Mannheim, Ideology and Utopia (New York: Harcourt, Brace, 1959).  99 A n d instead o f beginning with facts o f immediate experience and their remodelling, Utopian thought "leaps upon the final result, the ends that one is meant to discover."  213  It is thus this particular vision of the criticism - defamiliarization, followed by Utopia that I will apply to the core o f the conservative consciousness analysis. What remains is to describe the nature and sequence o f the demonstration that this vision will serve to realize.  B.  What demonstration?  I w i l l once again mention comments I made in the introduction. I am particularly aiming toward the premise that states that the contemporary world is currently passing from the age o f modernity to that o f post-modernism and the conservative characteristic having been ascribed to the consciousness presently dominating over uniform law. U n t i l now, this premise and this characteristic were assumed to be true, without the need for further analysis. However, the ongoing search for a post-modernist consciousness requires that they be specified before going any further. In the case o f the premise, this is imposed i n order to determine exactly what the contemporary world is susceptible of leaving behind, of conserving, and seeking out, as a result of the current transformations. In the case o f the characteristic, it is important to justify its  213.  On this point, H. Bergson adds that "we must admit that the whole self is presented in the form of a schema and that the work of invention consists precisely in converting the schema into an image", in Dictionnaire encyclopedique universel, vol.5 (Paris: Quillet & Grolier, 1962) at 3013 [translated by author].  100 selection by explaining where the conservative consciousness comes from, and to what it is attached.  I propose that the link between the preceding paragraph and the criticism as legal imagination set forth i n A ) , implies a thorough demonstration distributed among three chapters. It w i l l be shown, preliminarily, that the conservative consciousness reflects the principles and values of modernity and modern law. Assuming that the inherent relationship or the correlation at the heart o f the first chapter is indeed true, it w i l l become possible to proceed with the defamiliarization stage itself, which w i l l be encountered in the second chapter. I w i l l then present the rupturing factors of the conservative consciousness arising from the crisis of modernity and modern law, as well as some post-modernist paths o f reorientation i n which one can recognize the emerging route of law and development. This should be considered as the pre re-formulation phase o f uniform law. The third chapter w i l l be elaborated through a Utopian perspective: it w i l l represent the middle re-formulation o f uniform law. In this chapter, I w i l l present, as a logical response to the post-modernist reorientation, three Utopian variations on the theme o f uniform law. O n the whole, Part II w i l l allow me to attain the final phase o f the Koskenniemi triptych. I w i l l then have to join together all the information deriving from the regressive and the critical analysis within a full reformulation of uniform law, which w i l l be constitutive of the postmodern consciousness o f uniform law (Part III).  101 Chapter 1:  The Conservative consciousness, modernity and modern law  Modernity  214  and modern l a w  215  refer to a particular socio-historical context. They  reflect the mode o f social construction that has been prevalent throughout the Western world. They did not appear spontaneously, fully developed and readily accepted by all. Rather, they were the product o f a lengthy intellectual process, o f an accumulation o f a series o f mutations of ancient occidental culture. The spirit of this process pervades the conservative consciousness, a link which must be further examined here. In order to render this link visible and as sound as possible, I w i l l begin by examining the relationship between the conservative consciousness and modernity ( A ) , followed by its relationship to modern law (B).  A.  The Correlation with modernity  1.  Main features of modernity  From a general point o f view, modernity is based on two major premises, reason and individualism, and is positioned as a dynamic m o d e l .  214.  215. 216.  216  J . M . Domenach, Approches de la modernite (Paris: Ellipses, 1995); J. Habermas, The PhUosophical  Discourse of Modernity (Cambridge: M I T Press, 1987); A . Maclntyre,4/ter Virtue: A Study in Moral  Theory, 2d ed. (Notre Dame: University of Notre Dame Press, 1984); P. Gay, The Enlightment: An Interpretation - The Rise of Modern Paganism (New York: Knopf, 1967); Norman Hampson, The Enlightment (London: Harmondsworth, 1968).  H. J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge:  Harvard University Press, 1983). R. Tarnas, The Passion of the Western Mind (New York: Ballantine, 1991).  102 Historically, the premise o f reason marks a rupture from the submission to the laws o f nature. The belief in the virtues of reason w i l l entail a general process of rationalization.  217  This  process w i l l result i n a technical, economic and political organization and w i l l be further developed through industrialization, capitalism and the construction o f a State whose authority is founded on a legal-rational legitimacy, exercised following pre-established guidelines and fully supported by a professional and disciplined bureaucracy. This domination o f reason is completed by a series o f other beliefs, ones that constitute the many myths that are inherent to modernity: belief i n the virtues o f science, endowing the human being with the power to dominate the forces of nature; faith in progress, through the progressive improvement of material conditions; the idea that history makes sense and that reason must progressively impose its discourse; finally, a conviction in the universalism of the paradigms constructed i n the Occident, called to serve, as the very expression o f reason, as models o f reference.  218  Modernity also relies on another premise, individualism, which places the individual in the core o f society. Individualism affirms the uniqueness o f every individual. Similarly, individualism allows every individual a certain margin o f autonomy and liberty so that he may live i n conformity with his own uniqueness. Individualism also implies a certain relaxation o f community ties i n order to provide for the construction of an individual-based social and political organization. A s a result, the individual is the cornerstone o f everything. The individual metaphor transcends the private sphere, where the individual is displayed as a human being, as  217. 218.  M . Weber, Economie et societe, trans. J. Freund (Paris: Pocket, 1995). P. A . Schouls, Descartes and the Enlightment (Kingston: M c G i l l - Queen's University Press, 1989).  103 well as the public sphere, where he is presented as citizen. C i v i l society is based on the free association o f individuals, the State being the mere result o f their common interests and the expression o f their common w i l l .  Different factors are at the source o f the dynamism of modernity, an expression that evokes a great diffusion from an Occident-born model. A . G i d d e n s , for one, attributes this 219  dynamism to the following characteristics o f modernity: i) the dissociation of time and space, which allows for a rationalized organization o f social relations and a unification o f spacialtemporal frameworks, ii) the derealization of social systems, made possible by the creation o f universal exchange instruments and the bringing into play of professional know-how, all relying on confidence; iii) institutionalized reflexiveness, which entails a constant examination and revision o f social practices in the light o f new information.  More specifically, I would emphasize the significance o f three aspects born o f modernity.  First aspect: Modernity, knowledge and progress. This first aspect pays tribute to the crossbreeding and evolution o f certain Greek and Hebrew roots o f modernity, o f which the ultimate goal was to place the individual at the center o f a universe that was continually at his service. There exists, on one hand, an abstract way to formulate the concepts that led to the  219.  A : Giddens, Les consequences de la modernite (Paris: L'Harmattan, 1994).  104 Cartesian ideal o f clear and distinct ideas. There is also, on the other hand, a linear approach to consider time that has engendered an optimistic outlook toward life and a rejection of destiny as a dominant force. If the preoccupation with precision dates back to Greek civilization and to the philosophy of logic heralded by Aristotle and the Stoics, the notion of a time where every instant is unique, non repetitive, derives from the O l d Testament. W i t h regard to knowledge and progress, the features o f modernity, these origins and their gradual evolution have followed a shaky and irregular path.  In the beginning, the religious notion o f time as linear phenomena is charged with supernatural significance. It seeks to express each and every aspect o f human history, from the Expulsion from Paradise to the Final Judgement. It is a period that is confined, bordered, one that has a definitive beginning and ending. The religious version o f linear time w i l l eventually be caught in the ideology o f progress. But i n order to play a significant role in the development o f knowledge, it w i l l have to undergo a substantial change, as demonstrated by its integration to abstract mathematics. Within his definitions of time and space, Newton retained the linear nature of time and its unidirectional character, yet transforms it into one o f infinite and thoroughly homogeneous duration.  220  Due to its homogeneity, time becomes divisible into equal parts, and  becomes therefore measurable and quantifiable. W i t h space, which is also infinite, homogeneous and quantifiable, Newton creates his system o f mechanical explanation. In this perspective, physical events are calculable, readily predictable, and by the same token understandable. It is  220.  R. S. Westfall, TVever at Rest: A Biography ofIsaac T^ewtow (Cambridge: Cambridge University Press, 1980); A . Hayli, Newton (Paris: Seghers, 1970); P. Brunet, L 'introduction des theories de Newton en France auXVIIIe siecle (Geneve: Slatkine, 1970).  105 thus that the world becomes scientifically explainable, and human being becomes more and more efficient.  The growth o f efficiency and o f human power goes hand and hand with the ideology of progress. This power notably aims to further the progressive Baconian precept according to which nature is there to be utilized rather than contemplated.  221  It is a task entrusted to  knowledge at the peak of its development, which allows one to confidently envision the radical improvement o f the human condition. Nonetheless, i f the significance o f the growth o f knowledge for the ideology of progress appears indisputable, the contribution ofjudeo-christian religion remains irrefutable as well. Firstly, the belief in the superiority of the human being over nature deriving from the O l d Testament consolidates progress. Then, the temporal perspective in which progress is inscribed corresponds fundamentally to the religious version of linear time. It is a qualitative time, fixated upon a definitive goal, which justifies and gives significance to each o f its moments. A n d this goal is nothing else but the realization o f a kind o f Garden o f Eden. In this perspective, the relevance o f linear scientific time is limited to being a tool i n the pursuit o f this end.  What results from this entanglement is a positive retro-action: knowledge procures progress which, in return, fosters the surpassing o f the frontiers o f knowledge.  221.  F. Bacon, Du progres et de la promotion des savoirs, trans. M . Le Doeuff (Paris: Gallimard, 1991); J. J. Epstein, Francis bacon: A Political Biography (Athens: Ohio University Press, 1977).  106  Second aspect: Modernity and the dichotomous point ofview. This aspect maintains that the general idea of division transcends a variety of notions, values and methods characteristic o f modernity. B y separating individuals from other individuals, fact from value, reason from belief and emotion, religion from the State, and so on, modernity undertakes a specific vision of human existence and truth. What is notably termed the dichotomous point o f view is recognized and further distinguished within certain sub-concepts.  The  sub-concept o f individuation pushes individual differentiation to the point o f  separating human beings from social relationships. In the words o f D . Cornell, "[t]he Enlightenment includes the principle that we might call the expressive ideal, suggesting that the self can be defined as an entity free from its containment within social roles."  222  Seen from the  initial modernist perspective, individuation is associated with the large scale ideas o f purity, progress and freedom: it serves to liberate the human being from the weight of tradition, outside expectations and hierarchical arbitrariness, to the advantage o f self-determination and personal self-suggestion. Another sub-concept, one o f detachment, finds a striking illustration i n the Cartesian formulation o f cogito ergo sum, this being the famous scission between the thinking abilities o f the human being and the rest o f his universe. It delineates a separation o f the subjective mind from the objective material world, o f the subject from the object. A s well, it implicitly favours reason over experience, that is to say, the product o f reason over the product of the senses in determining what is true. Reason seeks to impose its frame of thought upon the  222.  D. Cornell, "Toward a Modern/Postmodern Reconstruction of Ethics" (1985) U . Pa. L. Rev. 291 at 323.  107 outside world and to allow for the attainment o f precision and certainty. This is contrary to the seizure and interpretation of reality by the senses, a process which proves to be highly variable and unstable. The separation o f the object and the subject becomes the cornerstone o f the autonomous human w i l l . This being a purified and superior milieu, the human w i l l dispose o f faculties that render the physical person apt to bear judgement all the while being conversely responsible for his actions. Judgement and responsibility are aligned to form a strong humanist image, one o f a profound sense o f existence. The sub-concept o f segmentation completes the preceding ones. It gives even more significance to reason by separating from its context the life of individuals and objects that then appear more pure, comprehensible and coherent with the rest of modern thought. The latter, as is emphasized by M . C . Regan, "[demands] abstraction o f individuals from their particular social settings and attachments i n an effort to ascertain which propositions would have appeal to persons solely in their capacity as rational agents."  223  This  contextual extraction follows a reducible strategy: history is divided into independent tableaux, the different facets of a person's life are considered separately. The combination of disconnection and reduction opens the door toward objectivity and systematization that, in turn, tend toward universalization.  Third aspect: modern knowledge, economics and opulence. This aspect underlines, for one, the influence o f modern knowledge upon human desire. The precept upon which this influence lies derives from the Latin maxim nihil volitum nisi praecognitum, which means that  223.  M . C . Regan Jr., "Reason, Tradition, and Family Law: A Comment on Social Constructionism" (1993) V a L . Rev. 1515 at 1518.  108  nothing is desired without being known or, at the very least, suspected to exist. From this, modernity extrapolates the following principles: knowledge puts forward certain desirable objects to the human being; the universe o f desirable objects is proportional to knowledge; and knowledge, through its gradual evolution, awakens these desires by continually presenting a growing number o f desirable things.  On an economic level, these principles, together with other characteristics o f modern thought, confirms a vision o f opulence.  224  B y definition, opulence assimilates the development  of society to a process o f economic growth. In the analysis, this is demonstrated by the taking into consideration o f various factors and indicators such as heightened production, peaking productivity and increase in per capita income. Besides, it is an analysis which is oriented by three tendencies. Firstly, a tendency to adhere to a linear and mechanized vision o f evolution. A linear vision that is such that societies are called to journey across identical steps toward the desired level o f economic growth. It is also a mechanized one, which gives to these steps a quantitative nature enabling one to measure, calculate and predict them. Secondly, a tendency that gives a unidirectional dimension to those methods that guarantee economic growth. This single direction for each society consists o f privileging the methods advocated by the most advanced among them. Lastly, a tendency that gives a utilitarian role to values. The. questioning of these values is as follows: do they favour or infringe upon the economy? The values are thus  224.  J. K. Galbraith, L 'ere de I'opulence, trans. (Paris: Calmann-Levy, 1970); M . Lauesen, Le temps de I'opulence (Paris: Stock, 1943).  109 mainly instruments to be utilized or to be avoided, and not elements that are intrinsically assessed and valorized.  Opulence is reinforced, qualitatively, by other considerations issued from the modernist corpus. One o f these considerations is a generalized and deterministic reason where economic interests are perceived as being an indispensable antidote against violence and dogmatism. I f every individual pursues his or her own personal interest, it is all o f society that benefits and achieves maximum well-being. A l l o f this occurs as i f harmonious and efficient leadership operates i n such a way so that the sum o f individual interests, founded on utility- that is to say that the use is or can be advantageous, can satisfy a given need - is equal to the general interest. This leadership accomplishes its mission o f convergence i n a specific institutionalized context, namely the competitive market. A n d it is comforted by the powerful paradigm o f rational anticipations. This paradigm postulates that every active economic policy is thwarted by the predictions o f economic agents that incorporate the effects o f these policies into their own models. In other words, every collectivist mechanism proves inefficient because it w i l l eventually be incorporated into the predictions o f these agents. The latter w i l l use all o f their knowledge to overcome the effects of the policies. This then serves to favour and legitimize paneconomic discourse.  110  2.  The correlation  To what do we attribute the correlation between modernity and the conservative consciousness? Firstly, the correlation emerges from the fact that the two major premises o f modernity, reason and individualism, are deeply rooted i n the conservative consciousness. This is notably reflected i n the first strategy advanced by the conservative consciousness i n order to escape the antinomy o f truth. This strategy consists, as mentioned above, o f a junction between individuality and abstraction that allow access to the best possible values. The individual is thus envisioned as being able to overcome his contextual situation, and place himself in an impartial position. This elevation remains essentially monologist and translates a soft egoism, that does not necessarily imply the recognition o f others. The values o f liberty and utility, considered respectively from the point o f view o f rational actions and that o f the individual as privileged interpreter o f happiness, respectively reinforce the overall link between modernity and the conservative consciousness. These values recognize that the individual represents the ideal frame of reference to interpret the social organization as well as the element most conducive to its evolution. The fact that we speak o f a nation (or a country) instead o f the individual does not significantly alter this way o f reasoning, since any notion o f a collectivity can be reduced, at the very limit, to individualist considerations. The factors that are inherent to the dynamism o f modernity are also observable within the conservative consciousness. The latter is not inert, amorphous, nor discarded. It is altered and reworked i n order to allow the greatest possible audience for uniform law and attach an indubitable character o f normality to it. In this regard, we are forced to recognize the contribution o f the phenomenon o f professionalization: following  Ill the example o f modernity, uniform law is spreading under the effect o f the models and typologies advanced by members o f the legal profession administration.  227  225  and the p u b l i c  226  and private  In so doing, uniform law becomes more user friendly, thus readily exportable  from one place to another.  Secondly, the context o f justification o f the principles o f thought involves the integration of the unique hybrid aspect that I have entitled "Modernity, knowledge and progress". The linear nature o f time, i n its scientific version, is readily self-observable i n the emphasis placed by the conservative consciousness on instrumental thought. A s can be understood, Newtonian linear time represents the ideal tool available to the human being, that is to say the most efficient, in order to understand and dominate the surrounding world. It is no more nor less than an abstract knowledge, yet clear and precise all the while. In allowing one to know exactly what one can expect, in proceeding in certain predictions, it is indissociable from the march o f progress. The conservative consciousness fully undertakes this role. Moulded by obviousness, division, causality and exhaustivity, it acquires certainty, precision and omnipotence. It is a reassuring consciousness that rebounds onto uniform law by allowing it to personify a perfect or ideal knowledge. A s a result, uniform law readily positions itself as a high caliber juridical resource i n the mastering o f a surrounding world that, apparently, is becoming more and more  225. 226. 227.  Y . Dezalay, B. G. Garth & P. Bourdieu, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: Chicago University Press, 1998). See, for example, the activities and the works realized by U N C I T R A L , and mentionned in the UNCITRAL Yearbook (New York: United Nations). The I C C (International Chamber of Commerce) is an example of a private organization very active in the field o f international uniform commercial law. See "About I C C " , online: <http://www.iccwbo.org/home/intro_icc/introducing_icc.asp>.  112 globalized. But the conservative consciousness goes further than simply integrating linear scientific time. It also serves to integrate the religious counterpart o f the latter. What emerged from the analysis of the context o f justification is the presence o f a modest ends-based thought, founded on commerce, i n the midst o f the conservative consciousness. This affirmation relies on different elements: a formal understanding o f trade, a commercial end left i n the rough, unexplored and closed i n upon itself. A l l o f this serves to benefit an enchanted vision o f commerce, one that evokes the search for the Garden o f Eden that is characteristic o f the idea o f progress. A profound belief in the virtues of commerce and its benefits is at the root o f this level offaith. Responding to the needs o f international commerce or favouring the development o f international trade do not lead us nowhere: they lead us towards the realisation o f a truly humanist vision that is within arm's reach.  In addition, the dichotomous point o f view that transcends modernity, is found in the conservative consciousness. The latter separates the means from the ends, as appears from the value o f liberty. The tastes (ends) o f individuals are not discussed because o f their insurmountable diversities. Nevertheless, the identified strategies (means), the very root o f reason, are clearly relevant. In addition, the conservative consciousness, on the basis o f its autonomy, specificity, and distinctive character, defines uniform law as being an integral part of the international order rather than the national one. Finally, it isolates good faith, in order to fully differentiate between the good faith o f uniform international commercial law and all other types o f good faith. More specifically, individuation, by the power o f self-determination arid selfsuggestion that it attributes to every individual, underlies the dynamism o f the value of wealth.  113 Innovation, new combinations and the sometimes obligatory passage through various hardships would not be better accomplished without the recourse to an individual capable o f overcoming any constraints inherent to any aspect of the social fabric. In a similar way, the unifying capacity of the value o f wealth would be much less important were it not under the influence o f the separation o f subject and object carried out through the element o f detachment. I am here referring to autonomous human w i l l , and not to human w i l l that is dependent upon feelings and experience, that personalizes the individual as central player between offer and demand. This individual, driven by the desire for wealth, w i l l adopt behaviours and bring judgments accordingly, following all other individuals. The overall result is a mechanism giving credibility to the principle o f a uniform market price for a good or service. Finally, the combined effects o f disconnection and reduction associated with segmentation permeates the epistemological postulate underlying the value o f wealth. Through disconnection and reduction, it is indeed possible to accede to this comprehensive truth that is represented by the pursuit o f wealth, and to make o f it a method o f analysis as well as a means o f predicting future behaviours.  The vision o f opulence completes the correlation between modernity and the conservative consciousness. Straightaway, the very high quality o f uniform law as knowledge is a perfect complement to the always more premise that it is at the root o f opulence. This toplevel knowledge is moulded and understood as being definitely in a position to give effect to the desires to possess material goods. A n d the more uniform legal knowledge succeeds in doing this, the more it becomes susceptible o f being improved by those who possess material goods. Furthermore, the value of utility is especially linked to the vision of opulence. If the conservative  114 consciousness can serve to maximize and harmonize personal interests and, consequently, optimize collective happiness, it is because it conforms to the complexities of this vision. O n the one hand, opulence and utility share a common medium, namely money. The latter serves as a conduit to the economic growth which characterizes opulence. Money is apprehended in the form of an analytical tool, that is to say a measuring, calculation and prediction device. Hence,,money allows one to coordinate and organize hierarchically the elements necessary to the linear and mechanical march towards the economic always more. Utility draws inspiration from money, in an identical fashion. Money serves to assure a peaceful liaison between different social activities, by equalizing and confounding the externalities. Reinforced by the attributes attached to the efficiency o f instrumental thought, utility can seriously claim that it leads to a maximal satisfaction o f the individuals. O n the other hand, the shape o f utility following which the individual is the key to everything is inherently linked to other considerations o f the vision o f opulence that the analysis has established. The individual, and not the community, is able to feel happiness; the community is no more than the sum o f the individuals o f which it is composed; the community serves above all to protect the individual; i n sum, when utility is expressed i n these terms and furthermore falls back upon the virtues o f convergence deployed by the market, it draws from an opulence that also holds a great deal o f confidence i n the individual and competitive market context.  115 B.  The correlation with modern law  1.  Law  Main features of modern law  and modernity are very closely related. O n the one hand, the values and the  methodological foundations o f modernity permeate every aspect o f law, which entails a particular juridical representation. O n the other hand, law serves as an important catalyst i n the rationalization o f social and political organization, upon which it projects its attributes o f objectivity and necessity. L a w therefore serves both as expression and vector o f modernity.  228  This reciprocity constitutes a key element i n the exactness understanding o f the four main features o f modern law.  Modern law and Individuation. The notion o f the individual is one o f the pillars o f modern law. Its aspect is two-fold. From a fundamental point o f view, the individual precedes social organization; moreover, he is the bearer o f subjective rights.  The individuation at the heart of modern law has its theoretical roots in the doctrine o f natural l a w .  228.  229.  229  This doctrine is founded upon the notion that the individual comes before the  "The law is the ideal form of active discourse, able, by its own merit, to produce effects. It is not excessive to say that it creates the social world, but under the condition of not forgetting that it is created by it": P. Bourdieu, " L a force du droit. Elements pour une sociologie du champ juridique" (1986) 64 Actes de la recherche en sciences sociales 3 at 13 [translated by the author]. A . Seriaux, Le droitnaturel(Paris: Presses Universitaires de France, 1993); Y . Simon & V . Kuic, The Tradition of Natural Law: A Philosophe's Reflections (New York: Fordham University Press, 1992); J. Finnis, Natural Law and Natural Rights (New York: Clarendon Press, 1980).  116 State. The latter is merely the result o f a social contract, concluded in the interest and utility o f every individual. O n the mere basis o f his human nature, the individual naturally bears certain rights. The State, moreover, is expected to guarantee the provision o f these rights. This train o f thought is reformulated and adapted by the modernists. The latter define the rights that are held by the human being as such. These rights are then given priority over society. A n d the modernists establish that the individual cannot renounce these rights through his entering into society. The protection o f these natural rights, rights that are both permanent and inalienable, becomes the responsibility o f the political and social organization. The same train of thought is prevalent with respect to the idea o f a nation, considered to be the logical prolongation o f the individual. The nation, that is to say the grouping together of individuals, constitutes a collective subject that is also a bearer o f rights. It exercises its rights due to its sovereignty over a number o f matters, rights that it may exercise through the support o f the State.  Liberating and protector, law also becomes synonymous with benevolence and charity. It preserves the equality o f individuals in their mutual relations, and it establishes measures that serve to uphold human dignity. For example, based on specific hygiene, security, moral integrity and physical capacity criteria, these measures can favour decent working conditions. Or they can redistribute the wealth collectively produced, or serve to guarantee to everyone equal access to essential goods and resources. Quite simply, law fosters an ideal o f justice.  Modern law and Reason. Modernity transforms law as it was previously known, and confers upon it a number o f new attributes.  117 The creation o f an autonomous legal field and the unification o f law are important aspects of the transformations that are issued from modernity.  230  The autonomy o f law, for one,  derives from a movement o f secularization. Contrary to previous law, whose authority and legitimacy are founded on divine w i l l , modern law is self-defined as a specific normative device, governed by its own logic. The autonomy o f law means that it is able to find its underpinnings within itself, internally rather than relying on some external support. The other transformation, unification, is the work o f the State. The latter transforms the multiplicity, juxtaposition and entanglement that are characteristic o f the juridical sources and instances that had been known until then. Henceforth, the State imposes itself as being the exclusive source o f law. It replaces the pre-existing juridical orders, thereby becoming the unique legal frame o f reference for the entire collectivity. It confers upon specialized institutions with carefully defined jurisdiction, the production process of the law. It also delegates to various entities its constraining power i n order to suppress the violations o f its rules. In short, the omnipresent State fosters the transition from a pluralistic conception o f the law to a monistic one.  In a parallel analysis, the rationalized law acquires a new profile, which in turn demonstrates its many attributes. Thus, the configuration o f law corresponds to that o f an  ongoing logic on the part of its constituents. The legal norms are all integrated, completely and harmoniously. The law is presented through the perspective o f a coherent and unified whole, which gives it a sense o f simplicity, certainty and clarity. A n d even then, the law generalizes:  230.  W. J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); C. Grzegorczyk, Le positivisme juridique (Bruxelles: E. Story-Scientia, 1992).  118 it reads reality with the help o f abstract concepts, and masters it through the assembling o f neutral rules o f great stature. Finally, the law is an agent of stability. Through the projection o f an objective point of view upon the particular situations and by formalizing its rules into models, the law serves as a constant link between past and present. The legal future is i n fact a reflection of the legal past, that is to say, the changes are coloured by what has previously occurred. This way, every individual can determine the consequences o f his actions i n advance, and can plan accordingly. A s a vector o f modernity, the law is placed under the realm o f reason and consequently provides the guarantee for an organized, peaceful and unified society. It transmits the message to every individual that he evolves i n an intelligible totality.  The law thus acquires a "universalist posture" , strengthened by the "force o f the 231  f o r m " , a phenomena that P. Bourdieu describes as follows: 232  If the rule o f law assumes that there is a junction between an adhesion to common values [...] and the existence o f rules and explicit sanctions and regularized procedures, it is certain that the latter factor, which cannot be separated from the written, plays a decisive role: with the written appears the possibility of universal commentary, one that determines the rules and especially the universal principles, of the objective and generalized transmission (through a given method o f learning), above the spatial (between the territories) and temporal (within the generations). [...] Written law favours the autonomization o f the text, which we criticize, and which serves as a link between the commentators and reality; what then becomes possible [...] is a form of scientific knowledge, with its own norms and its own logic, able to produce all o f the  231. 232.  Bourdieu, supra note 228 at 5 [translated by author]. Ibid, at 14 [translated by author].  119 exterior effects o f coherent rationality.  233  A transcendental perspective can be added to this universalist one. In truth, the law is embedded within all social realities: on one hand, it expresses all its amplitude under the authority o f the impersonal subject we call the State. O n the other hand, it acts as a lens in allowing each and every individual to recognize one another and judge one another. This transcendence of the law is even clearer, since it can rely upon the tangible support o f the legal profession.  234  Modern law and Contract. Following the reassuring approach o f modern thought, the contract fixes obligations. This dimension can be demonstrated i n three ways.  Firstly, on a temporal level, the fixation symbolizes that the contract is reputed to be localised i n a single and unique moment: before and after this moment, no obligation is deemed to exist. The various possible times of the contract are brought together and confounded into one, at the actual present moment. This faculty o f "presentation"  235  appears to be plausible because  of the stability and the continuity which characterize the parties' environment. Past and future conditions being supposed to remain similar, it becomes conceivable that the parties could sufficiently remember the past and anticipate the future to define completely, at a given moment,  233.  234. 235.  Ibid, at 15 [translated by author].  Ibid, at 5.  I. R. Macneil, "Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract L a w " (1978) 72 N W . U. L. Rev. 854 at 863.  120 their commitments. Secondly, the insistence on the contract's compulsory character is explained by an immanent dualism which leads to considering the parties as separate and diametrically opposed entities. In this spirit, the dualistic analysis limits the spectrum o f motivations o f each contracting party to mainly pursuing his own ends, which is synonymous with both antagonism and egoist maximization o f interests. In view of these contradictory motivations, the dimension o f fixation o f the obligations would allow the parties to control and stabilize them and to avoid seeing them unexpectedly modified.  236  A n d thirdly, the fixation of the obligations is justified by  the fact that it flows from a rational choice made by the parties. What is a rational choice? This concept is based on a twofold premise. O n the one hand, choice is at the centre o f human activity. The human being can grasp the reality that surrounds h i m and be in a position to see the entire spectrum of possibilities open to him. This contact permits h i m to express his preferences towards such or such possibility, that is to say to appraise the relative value o f one or another option. O n the other hand, the choice is rational from the moment when the human being makes choices which are consonant with his preferences. A s such, this is not particularly problematic. A s a matter o f fact, the human being is a stable person, consistent with himself, reasonable and capable o f making the right choice. G i v e n his aptitudes, one is allowed to be uninterested i n the nature and in the content of his preferences, to be neutral is this regard. So conceived, the rational choice becomes the modern tool for both describing and understanding human action. It also becomes something that it is important to protect and sanction. The contract shares this point o f view. The principle according to which the obligations o f a party simply reflect the consequences  236.  C. Fried, Contract as Promise: A Theory ofContractual Obligation (Cambridge: Harvard U.P., 1981).  121 of his choices flows from the joining o f the concept o f rational choice to the contract. Rational choice is sufficiently representative of everyone's behaviour to explain that the situation is such. Thinking differently would amount to both discrediting and hampering the full use o f each person's capacity.  Modern law as Strong Law. Because o f its dependence on reason, justice and security, law naturally becomes the most convenient mode o f structuring and regulating social relations in modern society. It shows the way to social evolution and coordinates the action o f the constituting elements o f society. Social rationality and legal rationality become perfectly symmetrical. Given the premise that legal norms are rational, everything that conforms to legal norms is rational. Hence, the modern society places its complete trust i n the law, and this leads to considering the rule as sacred. The legal norm is mistaken for reality itself. It is seen as truly having the capacity to realize what it comprises and what it promises. This vision o f law as rational mechanism is clearly linked to an idealized conception o f law which cannot be found in the concrete reality o f everyday life. The idea o f a legal order based on a rigorous sequence of normative propositions and governed by the laws o f formal logic is but a product o f reason and is equivalent to a kind o f belief. This idea nonetheless represents a determining element o f the power o f law, o f strong l a w .  237.  237  This expression is derived from the title of P. Bouretz, ed., La force du droit: panorama des debats contemporains (Paris: Editions Esprit, 1991).  122 2.  At  The correlation  its very basis, the correlation between modern law and the conservative  consciousness centers on individuation. Modern law is shaped by the idea o f the legal preexistence o f the individual in relation to the State. A n d this idea is rooted i n the background o f the argument o f the autonomy o f the w i l l . Firstly, it is a self-evident argument: its existence is absolute and natural. Secondly, the autonomy of the w i l l , and not the State, represents the causal law which explains the genesis, execution and end o f the contract. Finally, due to its apparent ability to be invoked in conformity with individual, national and State aspirations, the argument of the autonomy o f the w i l l legitimates the slogan advocating the development o f international commerce. Besides, the States expressly rely on this argument to satisfy their interests and expectations. Both the argument of the concrete intention of the parties as the Grundnorm of the Vienna Convention, and that of the maximization of interests based on the autonomous contract concept, consolidate as well the idea that, i n the conservative consciousness, the w i l l o f the parties precedes the State. A s a matter o f fact, the State here plays a role which corresponds to that of the State i n modern law, that is to guarantee individual rights. A s demonstrated, the value of freedom, which characterizes the argument of the concrete intention of the parties is, for that matter, unequivocal: it confers to the State the task o f securing the enjoyment o f individual rights, their free transfer and the guarantee o f promises, all o f which are indispensable ingredients of the creation of prosperity. From the idea that the individual precedes the State, we go to the benevolent and beneficent State, be it in the conservative consciousness or modern law. The State in uniform law is preoccupied with the just, is spite of the difficulties arising from its  123 contradictions, its complexity and the diversity o f its conceptions. Even more, it can do it i n distributing equitably the fruit o f wealth.  Pushing the correlation further, the overlapping o f modern law and reason with the background o f the argument of juridical convergence is striking. Firstly, the transformations o f law derived from modernity partake o f monism. Due to the centripetal force o f the State, law becomes one. It crystallizes into an organized whole, with clearly definite contours. Its functioning obeys clear rules, which endows it with an ability for self-determination. The search for order underlying the argument o f juridical convergence perfectly corresponds to the monist perspective o f modern law. In this regard, the conservative consciousness demonstrates, too, its concern for clarity and simplicity. A n d it can answer these requirements by merging national laws or by allowing tradesmen to spontaneously establish one legal regime suitable to their needs. The result is, as for modern law, a juridical unity said to be intelligible. Secondly, the logical sequence, the generalizing power and the stabilizing capacity shaping the so-called rational law are also present i n the linearity and the determinism which influence the simplifying thought o f the conservative consciousness. A s regards linearity, it leads to the recognition o f a unique point o f view to describe and understand reality and constitutes a kind o f generalization equivalent to that which is found in modern law. A s regards determinism, it takes up the attributes o f modern law relating to the complete and harmonious