WHY IS THERE AN INTERNATIONAL COMMERCIAL UNIFORM LAW RATHER THAN NOTHING ? A POSTMODERN MANIFESTO by L O U I S M A R Q U I S 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 I N 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 O F 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 S T U D I E S (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 O F B R I T I S H C O L U M B I A October 1999 © L o u i s Marquis, 2000 In p r e s e n t i n g this thesis in partial fu l f i lment of the r e q u i r e m e n t s fo r an a d v a n c e d d e g r e e at the Univers i ty of British C o l u m b i a , I agree that t h e Library shall m a k e it f reely available fo r re fe rence a n d study. I further agree that p e r m i s s i o n f o r ex tens ive c o p y i n g of this thesis fo r scholar ly p u r p o s e s may b e g ranted by the h e a d o f m y d e p a r t m e n t o r by his o r her representat ives . It is u n d e r s t o o d that c o p y i n g o r p u b l i c a t i o n of this thesis for f inancial ga in shall no t b e a l l o w e d w i t h o u t m y w r i t t e n p e r m i s s i o n . D e p a r t m e n t of T h e Un ivers i ty of Brit ish C o l u m b i a V a n c o u v e r , C a n a d a D E - 6 (2/88) 11 Abstract International uniform commercial law is like the realization of a global dream. It is currently an unavoidable reference point because of 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 of the creation of an international private law. Others, working with the theory developed by T. Kuhn in The Structure of Scientific Revolutions, interpret it as a sign of the birth of a new paradigm underlying international commercial transactions. A s well , A . Kassis affirms that it represents the germ of a future amalgamation of all sales laws, while V . Heuze speaks o f it in terms of 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 of 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 of uniform law, and, correlatively, the attitude of 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 of 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 in an interpretative schema of uniform law, and the other in a uniformist reading of the Quebec world. I l l T A B L E O F C O N T E N T S Abstract i i T A B L E O F C O N T E N T S i i i I N T R O D U C T I O N 1 Prolegomenon 1 Purpose of the thesis 4 Methodology 10 Conceptualization 17 P A R T I R E G R E S S I V E ANALYSIS: T H E C O N S E R V A T I V E CONSCIOUSNESS 23 Preliminary remarks 23 A . A n emphasis on legal scholarship 23 B . A jw/y-background 26 Chapter 1: Principles of thought 29 A . The context of discovery 29 1. A metaphysical thought: The argument of good faith 29 2. A n analytical thought: The argument of the autonomy of the w i l l . . 35 3. A simplifying thought: The argument of juridical convergence . . . . 41 B . The context of justification . . . . ' 46 Chapter 2: Values 56 A . The context of discovery 56 1. The value of "liberty": The argument of the concrete intention (real choice) of the parties 57 2. The value of "wealth": The argument of growth 62 3. The value of "utility": The argument of the maximization of interests 67 4. The value of "justice": The argument of equality and cooperation between the parties 72 B . The context of justification 77 1. Tableau 1: Content 79 2. Tableau 2: Procedure 82 Final remarks 91 iv P A R T II T H E C O N S E R V A T I V E CONSCIOUSNESS: CRITICISM 93 Preliminary remarks 93 A . Criticism as legal imagination 94 B . What demonstration? 99 Chapter 1: The Conservative consciousness, modernity and modern law 101 A . The Correlation with modernity 101 1. M a i n features of modernity 101 2. The correlation 110 B . The correlation with modern law 115 1. M a i n features of modern law 115 2. The correlation 122 Chapter 2: Defamiliarization, or the pre-reformulation of uniform law 127 A . The Conservative consciousness'rupture 127 1. Some extra-legal elements of rupture 128 2. Some legal elements of rupture 132 3. The comprehensive critic and alternative of Sousa Santos 137 4. Conclusion 140 B . The postmodern reorientation of uniform law 142 1. The oppositions 146 a) First opposition 146 b) Second opposition 148 c) Third opposition 150 d) Fourth opposition 152 2. The metaphors 154 a) The metaphor of the multiple 155 b) The metaphor of consensus 157 c) The metaphor of the flexible 159 d) The metaphor of the relative 161 Chapter 3: Utopia, or the middle reformulation of uniform law 164 A . The transitory conception 165 B . The outline of a new discourse 172 1. The relational argument 172 2. The argument of the common good 173 3. The worldly argument 176 4. The argument based on self-fulfillment and solidarity 178 C. A history of uniform law 180 Final remarks 188 V PART III THE REFORMULATION OF UNIFORM LAW: TOWARD A POSTMODERN CONSCIOUSNESS 190 Preliminary remarks 190 Chapter 1: The context of discovery 197 A . 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 of the project) 217 c) Cooperation between the parties and their environment (or osmosis) 222 B . 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 C . 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 Chapter 2: The context of justification 259 A . Prelude 259 B . Structure and content 261 1. Why self-fulfillment and solidarity? 261 2. Strategic principles: what are they? 266 Final remarks 272 VI P A R T IV APPLICATIONS 274 Preliminary remarks 274 Chapter 1: A n interpretative schema o f uniform law 281 A . The taking cognizance step 283 1. Description of the process 284 2. Qualification and critique 288 3. Proposition 291 B . The reasoning 294 1. Description of the process 296 2. Qualification and critique 300 3. Proposition 304 C . The situation 307 1. Description of the process 309 2. Qualification and critique 312 3. Proposition 316 Chapter 2: A uniformist reading of the Quebec world 320 A . Innovation 323 1. Description of the variable 325 2. Evaluative reading 329 3. Prospective reading 334 B . Diffusion 338 1. Description of the variable 339 2. Evaluative reading 343 3. Prospective reading 347 C . Aspiration 351 1. Description of the variable 353 2. Evaluative reading 358 3. Prospective reading 362 Final remarks 368 C O N C L U S I O N 369 B I B L I O G R A P H Y 380 V l l 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 Luc B . Tremblay, Sophie Dufour, Nathalie Vezina, Normand Ratti, and Jean-Guy Bergeron. But above all , my deepest debt is owed to my wife, colleague and friend Genevieve, and my children Marc-Antoine, Vincent, Felix, and Andreanne, for their constant encouragement in relation with my big homework - mon gros devoir. 1 I N T R O D U C T I O N Prolegomenon A s a young boy, I was troubled by the mystery surrounding the things of life. I could hardly understand certain aspects of life, starting with my simple presence in 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 of 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 of these things. On 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 of those that the encyclopedias called the wise, the erudite or les savants. A s my knowledge grew concerning both my own tastes and those of others, and with the teachings of the wise, I developed a maturity which permitted me to clear up the mystery o f the things of life. Paradoxically, however, I grew more and more interested in testing the depths of this mystery; and, parallel to that, the frontier between tastes and intellectual knowledge at times became blurred. Would the questions ever end? With hindsight, I realize that the troubling nature of 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 of 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 in 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. Why 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 law 2 as the focal point of this thesis. Among all 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.3 Thus, certain people see the Vienna Convention on Contracts for the International Sale of Goodsf to cite just one example, as the cornerstone of the creation of an international private law. 5 Others, working with the theory developed by T. 1. P. Amselek, "L'etonnement devant le droit" (1964) Archives de philosophic du droit 163 at 165-166 [translated by author]. 2. Hereinafter "uniform law". 3. 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 Law (known as UNIDROIT) strives to make the dream of a jus 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). 4. Apr i l 11, 1980, U N Doc. A/CONF.97/18, Annex I (1980). Hereinafter "Vienna Convention" or "CISG". 5. J. A . Spanogle, "The Arrival of International Private Law" (1991) 25 Geo. Wash. J . Int'l L. & Econ. 477. 3 Kuhn in The Structure of Scientific Revolutions,6 interpret it as a sign of the birth of a new paradigm underlying international commercial transactions.7 A . Kassis affirms that it represents the germ of a future amalgamation of all sales laws, 8 while V . Heuze speaks of it in terms of remarkable progress.9 For the defenders of 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 of the conflict o f laws rules. It is an international convention which includes a complete set of 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 in life. Thus I came to ask myself, Why is there a uniform international commercial law rather than nothing? This paraphrase of the fundamental metaphysical question formulated by M . Heidegger - "Why are there beings rather than nothing?" 1 0 - underlies this entire thesis. It expresses the intrinsic though unacknowledged strangeness of uniform law, and, correlatively, the attitude of astonishment that one must adopt toward this juridical field. 6. (Chicago: Univ. of Chicago Press, 1962). 7. K. C. Randall, J . E. Norris, " A New Paradigm for International Business Transactions" (1993) 71 Wash. U. L. Q. 599. 8. A . Kassis, Le nouveau droit europeen des contrats internationaux (Paris: L.G.D.J. , 1993) at 559ff. 9. V . Heuze, La vente internationale de marchandises. Droit uniforme (Paris: G L N Joly, 1992) at 367 [translated by author]. 10. 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 the thesis To the question What are we aiming for? 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 of 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 of humanity. 1 1 With these words, the philosopher synthesizes and puts in perspective, in his own manner, the contradictory feelings and acknowledgments of disenchantment, disillusion, unconsciousness and uneasiness, on the one hand, and of enchantment, charm, continuity and progress, on the other hand, that are created by the present epoch. 1 2 For him, knowing what we are aiming for requires us, above al l , "to suspend judgment for an instant"1 3 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 of certainty with a renewed search for the right and the 11 . ( P a r i s : R o b e r t L a f f o n t , 1 9 9 5 ) at 15 [ t r ans l a t ed b y a u t h o r ] . 12. 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 "Desen-chantement 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 d e s 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 t h e 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 J o u r n a l 1 1 4 3 13 . S a u t e t , supra n o t e 11 at 15 [ t r a n s l a t e d b y a u t h o r ] . 5 good and face the challenge of making the combination work for the best.1 4 This appeal for a return by thought upon itself finds an echo in the juridical field composed of the junction of 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?" 1 5 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 l ikely to ensure development. Put differently, the relationship of 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. 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). 15. 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 of development. The idea of 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 of 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 of points of view of 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 of law are not linked to the observation of facts that are foreign to thought and deemed as constituting a neutral, objective and consistent point of reference. Rather, they derive from an internal reality, a vision that P. Amselek explains with the formula "the law in minds." 1 6 From that point on, legal frontiers extend beyond the positivist framework constituted by the State and its legislative and regulatory acts. What the law is becomes bound up with a given context of human life as made up of attitudes, experiences and 16. P. Amselek, "Le 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: 1 7 juridical facts move through other types of facts (economic, political, social, etc.), thus creating reciprocal zones of contact and influence whose manifestations and results are manifold and often indeterminate. Consequently, the emerging route tackles the law-development equation from the angle of complexity. Further, this route replaces the idea of transplantation with the idea of 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 of significations 1 9 that relate law and development. 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 of the emerging route] that ought to dictate the nature and direction of future inquiries into law and 17. J . -G. Belley, Le droit soluble : Contributions quebecoises a I 'etude de I'internormativite (Paris: L.G.D.J. , 1996). 18. D .E . Apter, Rethinking Development: Modernization, Dependency, and Post Modern Politics (New York: Sage, 1987). 19. C. Geertz, Local Knowledge (New York: Basic Books, 1983); also, The Interpretation of Cultures (New York: Basic Books, 1973). 8 development." 2 0 But how, through the intervention of uniform law, are we going to follow up on this? The feeling of 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." 2 1 For the purpose of the present thesis, I would submit that 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 of a postmodern consciousness of uniform law. The raison d'etre of this objective is the premise that the clarion call to better know what we are aiming for, as manifested in the emerging route of law and development, represents a significant indication of the changeover of the contemporary world from the age of modernity to that of postmodernity. In other words, the appeal of Sautet must be interpreted in light of this affirmation by A . Huyssen: What appears on one level as the latest fad, advertising pitch and hol low spectacle is part of a slowly emerging cultural transformation in Western societies, a change in sensibility for which the term postmodern is actually, at least for now, wholly adequate. The nature and depth of that transformation is debatable, but transformation it i s . 2 2 In this context, as T. Todorov tells us, "It is no longer more facts that we need, it is more 20. Chibundu, supra note 15 at 228. 21. I. Wallerstein, "Social Science and Contemporary Society" (1996) 11 International Sociology 7 at 24. 22. 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."2 3 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 of artifice. It is, first of all , a way of placing uniform law in 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, 2 4 rendering precarious its ability "to guide self-directed social interaction." 2 5 Thus postmodern consciousness becomes a way of making uniform law a teleological juridical phenomenon capable of inspiring as many practical applications as is necessary, as opposed to a legal meta-phenomenon.2 6 Which brings us to the second objective of my thesis (Objective B) . I propose to develop two such applications. One w i l l consist of an interpretative schema of uniform law and the other of a uniformist reading o f the Quebec wor ld . 2 7 It is, in the end, a way of assuming the writer's responsibility, as urged by J.-P. Sartre. 2 8 In the text of his famous address, Sartre reminds us that those who believe that literature merely speaks for the sake of speaking excuse writers from their responsibilities. One has to recognize that words contain attitudes and gazes; they convey ideas, "universes of knowledge, consciousness and culture" 2 9 that run through things and beings. The fact of l iving begins with, or depends on, the words that we assemble: "In speaking, I know that I effect change. It is not possible for me 23. T. Todorov, Critique de la critique: Un roman d'apprentissage (Paris: Seuil, 1984) at 15 [translated by author]. 24. See Part I, below. 25. G. Postema, "Implicit Law" (1994) 13 Law & Phil. 361 at 374. 26. 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." 27. See Part IV, Chapter 2, below. 28. J.-P. Sartre, La responsabilite de I'ecrivain (Paris: Verdier, 1998). 29.. Ibid, at 30 [translated by author]. 10 to speak i f it is not in 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." 3 0 From this point of 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 in the pursuit of my two objectives consists of 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 of the assumptions which control modern discourse about international law." 3 2 According to him, 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 in abstraction from descriptive theories about the...character of social life 30. Ibid, at 32 [translated by author]. 31. (Helsinki: Lakimiesliiton Kustannus, 1989). 32. Ibid, at xvi. 11 among States and on the desirable forms of such l i fe ." 3 3 Koskenniemi uses a method that he summarizes as follows: The approach followed here is one of "regressive analysis". I shall attempt to investigate discourse about international law by arguing back to the existence of certain conditions without which this discourse could not possess the kind of 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 in theory or in doctrine, are constituted. 3 4 It is thus important, according to Koskenniemi, to unravel the explicit arguments in order to access to the deep-structure - the assumptions - as the latter determine "the conditions of what can acceptably be said within [the arguments], or what it is possible to think or believe in [them]."3 5 The operation is combined with a critical insight, because in attaining the essential considerations "which control the production of particular arguments within discourse," 3 6 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 . 3 7 I f they do not act in such a manner, jurists are condemned to live "with the prevalent routine of interpretative intuitionism" 3 8 and thus to experience difficulty "in integrating their descriptive and normative 33. Ibid, at xiii. 34. Ibid, at xvii. 35. Ibid, at xxi-xxii. 36. Ibid, at xxii. 37. Ibid, at xxiii. 38. Ibid, at xxiv. 12 commitments into analytical studies about the content of the law." 3 9 Consequently, the analysis as a whole consists of 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 of expression and persuasion. - These means w i l l be represented by arguments or concepts that form, i f we view them in perspective, the surface or the primary level of uniform law. - The meaning of these arguments is bound up with a background picture of uniform law constituted of principles of thought - ways of seeing things and encompassing reality - and a normative content - values - that permit one to grasp this reality. I w i l l be interested in the philosophical turn of these principles of thought and these values. - The background of 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 in 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. 4 0 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, in Part II, on the basis of the premise that I proposed above of a changeover towards postmodernity, to a critique of conservative consciousness. This w i l l lead in 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 of uniform law. They w i l l take the form, rather, of a philosophical, conceptual and doctrinal discussion centered on different arguments. This discussion w i l l probably appear quite distant from usual analysis of 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 of fact, to adopt a different orientation - such as a clause-by-clause analysis - would constitute a misapprehension of Koskenniemi's approach. In my opinion, it is necessary to follow this unorthodox orientation in 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 of 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: CaptusU. P., 1993) at 56. 14 the site of lively debate about what lies in wait for our world in the near and distant future. It is one among a set of currents of thought and action that contribute to creating the climate of ambivalence described by Sautet. A notion commonly linked with the issue of globalization is that megaforces are giving birth to systems and frames of reference of unparallelled magnitude, uniform law being one such. B y virtue of this link, uniform law is particularly well suited to the kind of 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 of science by H . Reichenbach, who sought to make a distinction between the description of the origin or genesis of an idea, proposition or 15 argument (the context of discovery) and the proof or the demonstration of 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 of a "discovery machine" that would assume the creative function of 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 im and which claims to explain this relation. In other words, logic is not concerned with the context of discovery. 4 1 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 of psychology and history and thus to the context of discovery. The distinction corresponds to a particular conception of science in which the type of truth sought takes the form of 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 of giving the philosophy of science a transcendental vision, that is to say one in which the reasons justifying an argument command universal assent.42 I intend to use this distinction in a different manner in order to adapt it to the discursive 41. 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. 42. 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 of arguments reflecting different economic, cultural, political and moral interests and convictions. In this type of process, it is admitted that, ideally, the confrontation of arguments should increase their precision, their coherence and their reflexive character^43 Therefore the difference between the two contexts does not reside in the manner in which the arguments w i l l be undertaken. The difference is rather in the degree o f importance of the motivations and criteria that are invoked in order to justify such an orientation, decision or action. Thus, only those arguments that play a significant or decisive role in the realm of the consciousness of uniform law w i l l belong to the context of justification, all other arguments being assigned to the context of discovery. Finally, the third process aims at viewing the consciousness - conservative as well as postmodern - of uniform law as a sort of ideal type. Following the practice initiated by M . Weber 4 4 for the purpose of research, the ideal type can be related to an assemblage of 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 in reality." 4 5 Thus constituted, the ideal type becomes a measuring device that facilitates the determination of the singularity of the object under study by indicating up to what point, in 43. P. Gerard, Droit et democratie. Reflexions sur la legitimite du droit dans la societe democratique (Bruxelles: Facultes universitaires Saint-Louis, 1995). 44. M . Weber, Basic Concepts in Sociology (London: Owen, 1968). 45. 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 of a homogeneous and unreal mental image. In the present case, it goes without saying that the analysis of the consciousness of uniform law w i l l be as precise, as detailed and as clear as possible. Nevertheless, in certain ways, this consciousness cannot but be somewhat unreal, approximate, tentative or transitory, in part by virtue of the attention I w i l l give to some aspects that appear to me to be dominant; but also because of my emphasis and approach in the demonstration of any given argument. These wi l l naturally confer a relative character to the consciousness of 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 of applied research4 6 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 IV - the interpretative schema of uniform law and the uniformist reading of the Quebec world - w i l l be formulated. Conceptualization In general terms, uniform law refers to any intelligible set of rules intended to govern one or more aspects of commercial life. It is distinguished from national legal systems mainly by virtue of 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 of a single state. In answering the question asked in the title, I w i l l refer more spercifically to three versions of uniform law. The first is designated under the name of 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 of 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 of substantive provisions in the matter of the sale of goods, constitutes one of its most complete expressions. For our present purposes, this convention w i l l embody most aspects of 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.4* These principles, in the opinion of C. Kessedjan, are closer to an intellectual study than to the proper work of an intergovernmental organization. 4 9 They have many purposes, such as serving as the contractual juridical framework for the parties, as a juridical reference for means of interpretation in general, and as a model for national and international legislators. 5 0 47. 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 Ly, International Business Law and Lex Mercatoria (North Holland: Elsevier Science, 1992). 48. Rome, UNIDROIT, 1994. For an introduction, see L. O. Baptista, "The Unidroit Principles for International Commercial Law Project: Aspects of International Private Law" (1995) 69 Tul. L. Rev. 1209; also, see A . Giardina, "Les Principes UNIDROIT sur les contrats internationaux" (1995) J.D.I. 547. Hereinafter "Principles". 49. C. Kessedjan, "Un exercice de renovation des sources du droit des contrats du commerce internatio-nal: Les Principes proposes par 1'Unidroit" (1995) 84 Rev. crit. dr. internat. prive 641. 50. 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? To 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. On one side, one finds those who, like B . Goldman, argue in favor of the lex mercatoria.51 On the other side, A . Kassis typifies the opposition to the lex mercatoria.52 He maintains the thesis that any contract must necessarily be subjected to State law. More specifically, the criticism of lex mercatoria is centered on three points of 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 of 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. 5 3 Ideological criticism then takes over from 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. B. Goldman, "La 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. 52. A . Kassis, Theorie generate des usages du commerce (Paris: L.G.D. J . , 1984); G. Delaume, "Compa-rative Analysis as a Basis of Law 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. 53. L'ordre juridique (Paris: Dalloz, 1975). 54. W. Wrengler, "Les principes generaux du droit en tant que loi du contrat" (1982) R. crit. d. i. p. 467; M . Mustil l , "The New Lex Mercatoria" in Etudes Wilberforce (New York: Oxford U.P., 1987) 149. 20 relates to the supposed difficulty of identifying the content of lex mercatoria with any degree of precision. 5 5 The vague and ambiguous character of its rules, its contradictions and the disappointing results of its years of application are all emphasized in this form of criticism. The adoption and coming into force of 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 of exclusive source of international commercial law. 5 6 Although the rules of the Vienna Convention have been adopted by states, these rules are considered to coexist with usages of 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 of rules issuing from commercial practice. However, others adhere to Kassis ' opinions, by advocating a systematic vision of the C I S G as a law of sales constituted of norms gathered into a statute.57 Other potential norms would either be governed by this statute, as provided under section 7, 5 8 or ignored. One of the most striking examples of an ignored potential norm is that of the lex mercatoria. One of 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 . Why does it matter? It would not exist 55. G. Delaume, "The Proper Law of State Contracts and The Lex Mercatoria: A Reappraisal" (1988) Icsid Rev. 79. 56. "The Vienna Sales Convention and the Lex Mercatoria" in Lex Mercatoria and Arbitration, T.E. Carbonneau ed. (New York: Transn. Juris, 1990) 139. 57. Norris & Randall, supra note 7 at 93. 58. "(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 in constituting a purified and self-sufficient statute, according to H . Kelsen's thesis, in which the norms converge into the concept of the autonomy of the parties. On 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 of the law applicable to the contract must not necessarily be linked to a complete legal order; ii) the ideological bias was not inherent in the lex mercatoria; i i i) the latter relied essentially upon a methodology likely to provide adequate solutions to each dispute. For the purpose of my contribution, the question of the delimitation between law and non-law is not of primary importance. I would prefer to postulate that each version of uniform law possesses a potential for persuasive authority 5 9 that must be properly used according to circumstances. This perspective seems to me to be more fertile and more respectful of the argumentative style that I wish to ascribe, following Koskenniemi, to the consciousness of 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 in Part II, I w i l l relativize each of these assumptions. Specifically, I w i l l show that: i) conservative consciousness is unsuited to dealing with certain significant realities of commercial life in a postmodern context, such as irrationality and unpredictability; ii) increased international trade does not automatically bring about an increase in wealth, in particular owing to what are called negative externalities; i i i) 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 of 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 of postmodern consciousness. 23 P A R T I R E G R E S S I V E ANALYSIS: T H E C O N S E R V A T I V E CONSCIOUSNESS Preliminary remarks Two series of remarks appear to be necessary in order to specify the type of regressive analysis that is the object of the first part. A. An emphasis on legal scholarship One of the fundamental characteristics of uniform law is to have as its object human actions. The effect of uniform law is to assign to these actions the juridical, commercial and international dimensions that correspond to the qualifications and the field of application of this discipline. Conversely, these actions themselves act on the meaning and scope of uniform law. The evolution of the norms that it contains is not fixed nor stopped in 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 of this coming and going, uniform law is called upon to manifest itself through its conceptual framework. This means that in 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 of 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 of uniform law: they allow for 24 both its recognition and the observation of its relations, in 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 al l , 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 of operations that orient the understanding that uniform law makes of reality. Secondly, given the complexity flowing from the variety of 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 of 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 self-sufficient uniform law rather than one that exists in relation to human actions; and then that the mode of 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 of background that constitutes one of the main components of the methodology of 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 of 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 of the theory w i l l be modified once we succeed in 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 . 6 0 Boudon thus emphasizes the multiplicity of the indispensable presuppositions to all knowledge, which form a sort of subconscious. This subconscious cannot be ignored or under-estimated: 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 of knowledge, this subconscious is located primarily in the theory that serves as the foundation of every discipline. This entire process goes beyond a current epistemology which, starting from the legitimate abstraction of 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 in 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 of knowledge and beliefs in 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 of 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 of C . Douzinas and R. Warrington, a "distrust... of creating [a] large-scale, totalizing [background] in order to explain" uniform law. 6 1 In contrast, a /?o/y-background calls upon "small-scale, provisional, open stories about" 6 2 uniform law. The principles of thought and the values that w i l l 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. The Law of the Text in the Texts of Law (London: Routledge, 1991) at x. 62. Ibid. 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 of reconstitution, decoding and analysis. They are a part of what K . Popper calls the third world, which is the world of products of the mind . 6 3 This implies that the meaning of 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 of depth and weight that is constituted in and distributed among the interstices of 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 of disparate components, intermingled and patched together; it refers to commandments conceived in 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 of the [law], only a shifting set of unstable references of multiple identities." 6 4 This makes law an off-center phenomenon. In these conditions, how is a /?o/y-background still capable of uncovering something perceivable? What is the kind of connection that exists among the constituting fragments of this 63. 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). 64. G. Minda, Postmodern Legal Movements. Law and Jurisprudence at Century's End (New York: New York University Press, 1995) at 241. 28 background? In this respect, I rely on an idea of flexible coherence, of simple adjustment.65 The operation of adjustment, which consists of 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 of 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 of law is based on more or less persuasive arguments, developed by reasoning that only contains relative convictions, which vary according to the facts in 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. 6 6 I f there is an equilibrium, it must be found in 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 of equilibrium. 6 7 65. See Part II, Chapter 3, Section C below for more on this topic. 66. C. Perelman, L. Olbrechts-Tyteca, Traite de I 'argumentation: La nouvelle rhetorique, 5th ed. (Paris: P.U.F., 1988). 67. I. Prigogine, I. Stengers, La nouvelle alliance : Metaphore de la science (Paris: Gallimard, 1979). 29 Chapter 1: Principles of thought A. 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 of the w i l l and juridical convergence. 1. A metaphysical thought: The argument of good faith Initially, the metaphysical approach finds support in the search for a state of good faith that remains true regardless of its components. This is the search for the identity of good faith. Both the lex mercatoria and State law express, each in its own way, a concern for this search. In the case of the lex mercatoria, the metaphysical element of identity is found in the idea that good faith provides for a permanent and continuous source of 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 in the remarkable synthesis of the lex mercatoria realized by F. Osman. 6 8 In the first pages of his study, Osman depicts good faith as 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 of general principles that emerge from precedent," 6 9 "the keystone of the arbitral system," 7 0 "a superior principle." 7 1 He quotes R. Vou in to the effect that it is "always identical to itself... Its juridical efficiency can increase or diminish, yet it remains always the same...perfectly defined and constant,"7 2 and M . Horsmans, who makes it "a rule of interpretation and the guide of any action and every judgment." 7 3 Osman's position implicitly incorporates the ideas of permanence, continuity and superiority. State law is also concerned with identity and this translates into its desire to determine good faith. 7 4 Here,;the question is to establish one determinate state of good faith from reasoning that is founded upon considerations of compatibility, homogeneity and community. Thus, the identity of good faith is articulated in the guise of a concept (i) that can go together with the existing economic, social, political and juridical systems; (ii) that should be made up of elements of 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 in opposition to that which would allow an interpretation of good faith sensitive to possible differences in the status of the contracting parties, or which would admit the idea of variability of 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 of identity. Good faith is. This makes it a principle universal in its essence according to the lex mercatoria, or a principle whose 69. Ibid, at 18 [translated by author]. 70. Ibid, [translated by author]. 71. Ibid, at 19 [translated by author]. 72. Ibid, [translated by author]. 73. Ibid, [translated by author]. 74. 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 in every respect - form, substance and results - according to State law. This dimension of identity finds support in another dimension, which is isolationist in 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 of good faith in 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 of 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 in 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 , 7 5 The institutional unity of the operators is thus assured, a unity whose universalism goes beyond the multiplicity of objective practices and groupings. In short, the origin and the raison d'etre o f good faith both belong to commercialism. A s for State law, the isolation of good faith is first of all simply formal in 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 of principle. 7 6 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 of international commerce on a basis of equality and mutual benefit is an important element in the promotion of amicable relations between States." Further, the third statement stipulates "that the adoption of uniform rules w i l l favor the development of international trade." In my opinion, this preamble should be understood as an invitation, not to say a constraint, to evaluate uniform law in the light of its contribution to the improvement of the quality of life in 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 in the case of 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 of good faith is reduced to the ultimately technical stake in creating a uniform version of it for commercial ends. 7 7 Along with identity and isolation, the idea of non-contradiction also characterizes good faith. Non-contradiction is founded on the internal unity of things and beings. On the level of thought, the underlying conviction of this idea is that the necessary true and precise description 76. Supra, note 4. 77. See, for example, F. Enderlain & D. Maskow, International Sales Law (New York: Oceana, 1992) at 56. 33 of things and beings requires that these be seen as free of contradictory and antinomic components. Staying in the realm of State law, the idea of non-contradiction appears first of all in the role of a general principle of interpretation given to good faith, around which the other norms of the Vienna Convention must be articulated. Article 7(1) C I S G , part of chapter II entitled "General Dispositions", actually stipulates that "in the interpretation of the present Convention, regard is to be had...to the need...to promote the observance of good faith in international trade." In this respect, good faith becomes an agent of unity and convergence with respect to the norms placed under its control. Unt i l now, however, this first manifestation was overshadowed in intensity by a second. In fact, what becomes more revealing about the idea of non-contradiction is the tendency to consider good faith in the light of the "large number of substantive provisions [that] directly apply i t" 7 8 or that are susceptible of being influenced by it. The right of the seller to remedy an imperfect delivery during an anticipated delivery, the principle of non-liability of the seller i f the buyer knew or could not have been unaware of a lack of compliance at the time the contract was concluded, the rule of mitigation of damages and other provisions, are thus associated with applications or specific formulations of good faith. Furthermore, late acceptance of an offer; the handing over, by the seller to the buyer, of documents concerning goods; and the quantity of goods delivered are all situations that enable good faith to be particularized and to be better understood. Such a decomposition of good faith shows a concern to reach a true and precise description of it, free from any contradiction. 78. Audit, supra note 4 at 49 [translated by author]. 34 Finally, uniform law integrates the argument of 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 of 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 of 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 of the international world of business. According to T. Carbonneau, "a body of juridical principles governing international commercial law..., a common law of international transactions"7 9 is developed principally under the impulse of 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 of the irreducibility of its international nature to a national nature in two ways. First of all , it falls back on the thesis of the specificity of international commercial transactions in 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 in 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 [transla-ted 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. 8 0 2. An analytical thought: The argument of the autonomy of the will Analytical thought relies first of all on a rule of obviousness concerning the principle of the autonomy of the w i l l . Obviousness, which presupposes certainty as a state which is accessible to thought, consists of doubting everything in order to avoid error and to arrive, through a process of elimination, at an indubitable truth. Uniform law borrows from this form of reasoning, a borrowing which is particularly striking in the case of the Vienna Convention. On the one hand, the process of reflection which is open to doubt, which constitutes the first phase of obviousness, is recognized in the volume of legal scholarship devoted to the body of rules (other than the autonomy of the wil l ) that govern one aspect or another of an international contract of sale. These rules are discussed and debated at length. They do not take force merely by virtue of being explicitly stated in the text of 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 of this debate. This is the case of J. Honnold, who pleads in favor of a "continuing dialogue, spanning legal and economic backgrounds." 8 1 In this context, doubt can truly be said to become a tool of knowledge. On the other hand, the doubt 80. R. David, Cours de droitprive compare (Paris: Les Cours de droit, 1968) at 60-62. 81. J. O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (Deventer: Kluwer, 1991) at 9. 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 in doubt or contested in the formation and execution of a contract of sale. The primacy of the w i l l o f the parties, autonomy as the primary source of a contract of sale: the pervasive presence of these expressions demonstrates this certainty. But there is more: in 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 of the primary and fundamental role of the principle, only one conclusion appears to be logically acceptable: the autonomy of the w i l l asserts itself with such vigor that it does not need any proof. It is self-evident or obvious. 8 2 While the manner in which autonomy of the wi l l and the other components of uniform law are articulated relies upon the rule of obviousness, the observation of the manner in which they are structured attests to the second dimension of analytical thought: division. This intellectual attitude aims at decomposing, at dividing concepts and difficulties into smaller units. This breaking down of concepts into smaller units is supposed to facilitate the study of these concepts as wel l as the resolution of the difficulties that they engender. In appearance, the lex mercatoria may seem impervious to this type of 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 Law Journal 346; D. J . Rhodes, "The United Nations Convention on Contracts for the International Sale of Goods: Encouraging the Use of Uniform International Law" (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. 8 3 Nonetheless, in considering lex mercatoria as it has been conceived and without prejudging its juridical validity, it appears to me to be truly engaged in the process of dividing the autonomy of the w i l l . It is important to realize, in effect, that this "corporate system independent of States"84 could not have seen the light of day and progress without the principle of the autonomy of the w i l l . Therein lies an authentic basis. However, probably in order to generate "a body of rules sufficiently accessible and certain to permit the efficient conduct of commercial transactions,"8 5 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 of its principal attributes in the pursuit of the objective o f making international commercial transactions a more stable and predictable milieu. Underlying a juridical regime such as that of the Vienna Convention lies the premise that the predictability and the security of transactions depend upon its degree of precision. It is with this in 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 of a presumed intention of the parties. It is thus enabled to consider different aspects of a contract of sale (offer, delivery, etc.) 83. G. Delaume, "The Proper Law of State Contracts and the Lex Mercatoria: A Reappraisal" (1988) ICSID Review 79. 84. 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]. 85. M . Musti l l , "The New 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 of a causal nature. Causality assumes that laws exist and that they must be identified to ensure the indispensable explanation of phenomena. In the sphere of uniform law, autonomy of the w i l l represents this fundamental explanatory reason of contract. The current crisis that, according to several authors, has been shaking up the law of contracts and contributing to a rethinking or even replacement of the autonomy of the w i l l as an explanatory reason has thus not reached uniform law. We 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." 8 6 The words of J. Honnold on the subject of the Vienna Convention offer eloquent testimony to this situation. He writes, "The dominant theme of the Convention is the role of the contract." 8 7 This domination results from the fact that the Convention "in two fundamental ways responds to the power of agreement. " 8 8 First of al l , "The Convention itself was produced by agreement," that is to say, "States from all parts of the world, through collaboration..., reached consensus."89 Then, "Consistent with these origins, the Convention does 86. R. A . Hillman, "The Crisis in Modem Contract Theory" (1988) 67 Tex. L. Rev. 103 at 103. 87. Honnold, supra note 81 at 47. 88. Ibid, at 48. 89. Ibid. 39 not interfere with the freedom of sellers and buyers to shape the terms of their transactions."9 0 In light of what precedes, Honnold concludes: A highly respected legal scholar in a rhetorical flourish (later modified) announced the "Death of Contract". A t least for international sales this report (as Mark Twain said of a report that he had died) is grossly exaggerated.91 This point o f view is largely dominant, some would say wholly dominant, in uniform law. Consequently, the best explanation for the birth, the formation and the end of 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 o f 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 of uniform law of the principle of the autonomy of the w i l l . Two elements are at the center of 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 in all systems of private international law that we can hold it as an international custom or as a general principle of law recognized by civilized nations." 9 2 In similar fashion, the Topco-Calasiatic award decision contains the following passage: 90. Ibid. 91. Ibid. 92. 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 of the autonomy of 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. 9 3 The second element is founded upon confidence in a twofold capability of international merchants: to generate, by themselves, fundamental values that are in conformity with the aspirations of 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 in international commerce," 9 4 leaving, notably, "broad powers of self-regulation to the international community of merchants".9 5 The importance granted to the principle extends to justifying the taking into consideration of public order "by the nature of things [but also by] the very wishes or the legitimate expectation of the parties." 9 6 Given its omnipresence and the allegiance it commands, the autonomy of the w i l l thus becomes an exhaustive argument, because it asserts its priority among all possible means of favoring and legitimizing the development of international commerce. 93. Topco Calasiatic v. Gouvemement Libyen, reported at (1977) J.D.I. 350. 94. Lalive, supra note 92 at 370 [translated by author]. 95. Ibid, [translated by author]. 96. 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 of B . Bonnell to the effect that the unification of law answers the almost too evident need "to assure the most orderly and secure development possible for commercial l i fe ." 9 7 Order would permit the subjection of commercial activity to a body of rules that present "the essential characteristics of practicality, simplicity and clarity, free of legal shorthand, free of complicated legal theory, and which [are] easy for the businessperson to understand:"9 8 Essentially, the search for order would impose itself as the antidote to the phenomenon qualified as "the nationalization of private international law" by R. Dav id . 9 9 B y virtue of this phenomenon, 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. David for one stresses the diversity of rules of conflict of laws and of the national material rules that would put the juridical security of transactions in peril, while A . Kassis endorses the "concert o f lamentations on the deficiencies" 1 0 0 o f the conflictual method. In short, it would become manifest and patent that 97. 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. 98. 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 Law" (1988) 109 Journal of Law and Commerce 109 at 121. 99. R. David, Le droit du commerce international: Reflexions d 'un comparatiste sur le droit internatio-nal prive (Paris: Economica, 1987) at 1 Off [translated by author]. 100. Kassis, supra note 8 at 559 [translated by author]. 42 "national laws are the international merchants', and traders', worst enemy." 1 0 1 The establishment of intelligible relations among what would otherwise be a disorganized and ill-assorted plurality of national laws can take one o f two courses. The first, that of amalgamation, characterizes the process of development of State law. It consists of 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 own 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), in respect to a commercial activity which is part of the order of things. Amalgamation and spontaneity constitute strategies of the first order for imposing order on international commercial law, and thus favor juridical convergence. On another level, each is supported by another component of simplifying thought known as linearity. A s a means of acceding to knowledge, linearity is characterized by the search for processes, rules and principles free from ambiguity and permitting the prediction of the appearance of phenomena. In all matters, the absence of ambiguity and the capacity of prediction should lead to the acceptance of one single point of view for describing and understanding the world, things and beings. It is precisely towards these attributes and this unity that uniform law turns. On the one hand, the idea 101. Mendes, supra note 98 at 112. 43 according to which "the key objectives of stability, safety and foreseeability ...are essential for international trade l aw" 1 0 2 is an intrinsic part of the conception of uniform law held by the vast majority of jurists. In many cases, this conception turns out to have priority, or perhaps exclusivity. On the other hand, the simplest solution to these imperatives is to be found in the formulation and the perfection of a form of juridical unity. Various ideological principles have served in the past as the foundation for the promotion of unity in international commercial l aw. 1 0 3 Idealism (the unity of the human species and planetary harmony), pragmatism (the practical value, in everyday commercial life, of working with a single legal regime), and historicism (the persistence or the return of jus commune) have each in turn served to justify it. But more recently, H . Berman has proposed a global justification which he conceptualizes under the expression of world law. Berman refers to all fields of activity (sports, literature, commerce, etc.), to all types of rules of conduct (laws, customs, usages, etc.) and to all facets of human life (history, humanism, society, etc.) to show that "for the first time in the history of the human race, most of the peoples of the world have been brought into more or less continual relations with each other." 1 0 4 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 law." 1 0 5 102. 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. 103. J. W. Westenberg, "The Quest for Unification" mForty Years On: The Evolution of Postwar Private International Law in Europe (Deventer: Kluwer, 1990) at 195. 104. H. Berman, "The Role of International Law in the Twenty-first Century: World Law" (1995) 18 Fordham Int'l L. J . 1617 at 1617. 105. Ibid.zt 1618. 44 To take for granted that uniform law embodies the "only point of view" legitimated by linearity is one thing. However, uniform law goes even further in its integration of simplifying thought by falling back on the principle of determinism. The objective consists in identifying the conditions, the circumstances or the facts that w i l l ensure constancy and persistence in the convergence or uniformity of 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 of reasoning founded upon the joining together and the putting in sequence of a large range of sources. A n d even i f many facets of the sources do not always formally possess a juridical value, they acquire an authority by the self-referential practices proper to this type of reasoning. Furthermore, the collection thus created inspires a feeling of 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 of international trade." 1 0 6 To sum up, lex mercatoria functions as i f each decision were cumulative, and bound up with, and the fruit of, the totality of all previous decisions. For its part, State law adheres to a determinism of a more scientific order, as reflected in the axiom the same causes produce the same effects. Thus, the drafters of the Vienna Convention wished to go further than the simple development of a uniform text. Very conscious of the risk that the diversity of juridical families and political and economic systems could spill over onto the interpretation of the Vienna Convention, they undertook to identify the conditions of existence of 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 of this endeavor explains the dearth of 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." 1 0 7 Finally, uniform law projects an image of 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 of referring to uniformization in such a manner that to prefer a different approach to regulating international commercial transactions would be equivalent to being incomprehensible. It is in this sense that R. David, in a critique of the nationalization of private international law, concludes that it is "contrary to sane reasoning." 1 0 8 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." 1 0 9 A . Kassis argues in the same vein. Emphasizing the enormous potential of 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." 1 1 0 R. Monaco is caught up in the same kind of enthusiasm when he speaks o f "all [these] eminent jurists who work and devote themselves to the grand phenomenon of uniform law," 1 1 1 which is thus viewed as 107. R. Monaco, "Allocution d'ouverture" in Le droit uniforme international dans la pratique (Rome: Oceana, 1988) at 3 [translated by author]. 108. David, supra note 99 at 11 [translated by author]. 109. Ibid, [translated by author]. 110. Kassis, supra note 8at 562 [translated by author]. 111. Monaco, supra note 107 at 1 [translated by author]. 46 essentially good. A l l these arguments contribute to procure for uniformization an aura of something always-already there - given - that is to say, whose presence is unmediated in the juridical ordering of international trade. The second type of argument refers more to the diverse circumstances that frame uniformization. Viewed in context, this analysis displays the ineluctable dimension of uniformization. The following affirmation by C . Samson is a good illustration of this type of argument: In the present context of the globalization of trade, uniformization of the applicable rules to commercial trade has become a necessity for participants in international trade. 1 1 2 In this perspective, interdependence and globalization go together wi th" [the] explosive proliferation of attempts to unify and harmonize private international law." 1 1 3 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 in the making of a given decision. When it comes to uniform law, these ultimate considerations, in whose light we come to discern the context of discovery, are 112. 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]. 113. Spanoggle, supra note 5 at 478. 47 conceived in terms I w i l l refer to as those of instrumental reason as opposed to ends-based reason. M . Horkheimer writes as follows on reason: Reason for a long time meant the activity of 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 of reason to find means for the goals one adopts at any given t ime. 1 1 4 The first part o f the statement refers to what Horkheimer designates by the words objective reason (or ends-based reason). This consists of 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 of one or many ends. According to Horkheimer, it implies the conviction that it is possible to discover "an encompassing or fundamental structure of being" 1 1 5 and to deduce from that a human destiny founded on the ideals of 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 of 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 of harmony between their lives and this 114. M . Horkheimer, Critique of Instrumental Reason: Lectures and Essays since the End of World War II (New York: Seabury Press, 1974) at vi i . See, also H. Stewart, " A Critique of Instrumental Reason in Economics" (1995) 11 Economics and Philosophy 57. 115. M . Horkheimer, Eclipse de la raison (Paris: Payot, 1974) at 14. 48 encompassing structure. This first impulse is echoed in the second, which seeks the appropriateness of 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 of analysis and application of thought is limited to the way to attain an objective. It does not apply to the objective itself. This objective is always in the end followed for some other reason, and so forth. This creates a spiral where the degree of 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 in relation to any existing order. Horkheimer sees in it the expression of an abstract process of thought: the reason depends on "the faculty of classification, inference and deduction," 1 1 6 regardless of the substance of thought being conceived in these operations. Is uniform law framed by a form of instrumental thought, in which the emphasis is placed on the means, or on ends-based thought, which is centered on the ends? Initial observation of the structure and content of the argumentation that I believe belongs to the context of justification reveals the presence of both components, means and ends. In fact, to answer to the needs of international trade and to favor 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, in that uniform law fills an instrumental function in 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 of each form of 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 of 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 of merchants, which they can use for their own profit. A s well , it is evident in the viewpoints that model and frame it in light of 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 of 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 of the birth of a new juridical paradigm of international commercial transactions, embodied notably in the Vienna Convention, takes a resolutely instrumental form. 1 1 7 They justify this culmination of a long 117. Randall & Norris, supra note 7. 50 socio-historical process by three brief considerations: it fits perfectly with their vision of present reality, which would be that of an "increasingly interdependent global community"; 1 1 8 it facilitates an increasing volume of international trade; and it further satisfies "the increased involvement o f nation-states as parties to international business." 1 1 9 In short, that uniform law is there in order to furnish means is a shining truth. The presence of ends-based thought in uniform law is not at all of 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 in this role, trade does not assert itself in a very forceful manner. To the glamour of instrumental thought there corresponds here something much more modest, as I hope to demonstrate. First o f al l , the clearly dominant perception of trade can be reduced to a formal recognition of it. Trade exists; it is a fact. This suffices for one to embrace and understand it. In terms of analysis, factual existence prevails over content. This basic perception is particularized in different ways. One of 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 of affairs, these questions occupy a marginal place in the consciousness o f uniform law. In short, trade is not examined in the light of, for example, the interests, the preferences and the 118. Ibid, at 600-601. 119. 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, of an objective entity, that is to say, an entity independent of these considerations. Another way of 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 in uniform law. But it does not follow that the truth of these assertions has been demonstrated. In the words of G.C.J .J . V a n den Bergh, "We know in fact very little about the mechanisms of legal development or the interdependence of legal and economic development." 1 2 0 In these conditions, it becomes difficult to affirm that we really know what is good in trade and in what measure this end can become a shining horizon, capable of 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 of 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 of a humanist vision, that of a sincere sentiment of human solidarity, 120. G. C. J. J. van den Bergh, "What Law for Whose Development? Some Theoretical Reflections on Law 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 of 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 of a new international economic order, to equality, mutual benefit and other fundamental principles. It has also been admitted that these are "illuminating indications." 1 2 2 However, such details have remained secondary in both the pure and applied theory of uniform law. It is impossible to affirm that they are at the center of demonstrations carried out in order to seriously integrate them into the method and organization of uniform law. Integration emerges rather from a simple but strong belief in the natural communion of trade and progress in all its forms; or in a type of automatism evident in the feeling of assurance that trade has been, is and w i l l be bound up with the needs of 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 of the analysis of 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 of its members in an empirical manner." 1 2 3 This would explain that law belongs to normative disciplines, in opposition to purely explanatory ones. On the basis of the premise that law accords with a value judgment, 121. L. J . Kennedy, "The Unification of Law" (1909) 10 J. Soc'y Comp. Legis. 212 at 214. 122. M . J . Bonell, supra note 97 at 94. 123. Osman, supra note 68 at 410 [translated by author]. 53 Osman posits: The judgment being necessarily founded on an evaluation of the objectives undertaken, these disciplines w i l l postulate the search for an end to be discovered. Hence, the facts of life of 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. 1 2 4 Osman follows this with the declaration, "The development of an anational law rests essentially, i f not exclusively, on economic considerations," 1 2 5 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 of the mercantile institution that w i l l imperatively reply to the needs of international trade in its normative production" 1 2 7 is derived from this context. In my opinion, the end Osman writes of that remains to be discovered is falsely determined. In particular, the place and real influence of the facts of life in society in the juridical 124. Ibid, at 411 [translated by author]. 125. Ibid, [translated by author]. 126. Ibid, [translated by author]. 127. Ibid, at 412 [translated by author]. 54 order of 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, in that they participate in the foundation of the lex mercatoria, it is difficult to conceive that they could be concentrated and synthesized in this raison d'etre o f the needs of international trade and continue to grow in 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 of 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 of 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 of motives and considerations. The arguments put forth by Osman tend in a different direction. Instead of opening up the lex mercatoria towards a whole, it closes it around a single subgroup, that of 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 of the encompassing structure as defined by Horkheimer. To respond in the words of 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 of an excessive materialism and of a mechanization of law. 1 2 8 For my part, I deem it sufficient to put forward the hypothesis that, in the absence of close communication between economics and that which is outside of 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 Chapter 2: Values A . The context of discovery The context of discovery in relation to the values of uniform law reveal four primary norms: liberty, wealth, utility and justice. They occur, in the reasoning on the context of discovery, in many arguments centered respectively on the concrete intention (the real choice) of the parties, growth, maximization of 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 of thought, I w i l l here proceed in two steps. I w i l l first develop several propositions characteristic of the way each argument is presented in the discourse of uniform law. This synthesis - placed in italics - w i l l enable us to eventually attain a plausible anticipation of the sense and the scope of the corresponding value. 1 2 9 129. I am relying on the E . Bloch's comments on " L a conscience anticipante", inLe Principe Esperance, (Paris: Gallimard, 1976) at 6Iff. 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. "I3° For M. Van Alstine, the resolution of this problematic results from taking 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 6.13' In addition to the following consequence that it "should...be abundantly clear [that] the agreement of the parties stands at the very top of the Convention's hierarchy norms, "132 Van Alstine deduces from the 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 quasi-unlimitedflexibility 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. M . V . Alstine, "Consensus, Dissensus, and Contractual Obligation Through the Prism of Uniform International Sales Law" (1996) 37 Va. J. Int'l L. 1 at 37. 131. "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." 132. Van Alstine, supra note 130 at 83. 133. Ibid, at 67. 58 Behind the argument of the concrete intention of the parties is found the attachment of uniform law to the value of liberty. 1 3 4 In a general way, this attachment refers to liberty as the exercise of rational action. 1 3 5 This conception of liberty relies upon a distinction between intentions bound up with individual actions and the cognitive capacities of individuals. Act ion 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 of facts that are exterior to thought and that are not dependent upon it. This permits one to judge the conformity of belief to facts. It is otherwise for action: subject to desires, passions, it depends on a variety of 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 of 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 of knowledge, they remain objectively available and therefore capable of founding an intersubjective unity. Human action is thus understood. We do not discuss the tastes of individuals, which are essentially divergent. However, in judging their efficiency, or in other words their rationality, we are interested in the 134. D. P. Chattopadhyaya, Knowledge, Freedom, and Language: An Interwoven Fabric of Man, Time, and World (Delhi: Motilal Banarsidass Publishers, 1989). 135. 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, in 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 . 1 3 6 Human action is strictly indissociable from this union of 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 of 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 of an agreement between the individuals concerned. On the contrary, whether because of the competition entered into to obtain a scarce resource, or because of difference in taste, individuals may not agree upon the nature of the distributions to be made. Yet, because of the instability, the insecurity and the discouragement that it produces, conflict itself increases scarcity. Thus, the role of society w i l l be to lessen tensions and reduce scarcity in assuring the effective use of rights, the transfer of rights by consent, and the fulfillment of promises. Given their interest in 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 of society, an objective intended to ensure prosperity, presupposes a general agreement on the rules concerning the enjoyment of rights, of their free transfer and of the guarantee of promises. 1 3 7 More specifically, these rules are declaratory of individual liberty in two respects: first of all , in the enjoyment of the product of one's activities and, secondly, in the transfer of goods according to the convenience of each person, which is the opposite of constraint and permits the satisfaction of personal interests. In the realm of prosperity, this liberty is understood as follows: each person chooses to work or to produce, knowing that the fruits of his labor or his production w i l l not be taken away from him; and each person, in the absence of unanimity, is not inclined to work or to produce freely for others. Globally, such a society based on the liberty of 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 of exchanges. If it is admitted that a society is composed of individuals who go about their business according to their interests, and that the activities of these individuals can be complementary, then there arises the problem of the connection between the different activities. Transfer by agreement permits exchange, which ensures complementarity on the basis of the respect of 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 of information about what must be done. In the absence of 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 of finding what he wishes to obtain. Again, complementarity can imply a loss of 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 of connecting the activities in general into a common and operational p lan. 1 3 8 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 of liaison by permeating itself with a guiding thread that is to be considered dominant and of universal import: the search for wealth. 1 3 8 . 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 P r e s s , 1 9 9 1 ) . 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 bases for 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 exempt from 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 economic field. 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 On the other hand, uniformization has become a many-sided reality.'41 It occurs under 139. H. Honka, "Harmonization of Contract Law Through International Trade: A Nordic perspective" (1996) 11 Tul. Eur. & Civ. L. F. 1 Hat 116. 140. K. Sono, " U N C I T R A L and the Vienna Sales Convention" (1984) 18 Int'l Law. 7 at 14. 141. H. P. Glenn, "Harmonization of Private Law Rules Between C iv i l and Common Law Jurisdictions" in Contemporary Law: Canadian Reports to the 1994 International Congress of Comparative Law (Cowansville: Editions Yvon 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 of growth permits uniform law to promote wealth as one of its values. 1 4 2 This second value intervenes on the basis of 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 of 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 of 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 of these complementarities through exchange, which reveals a partial agreement each time. A n d the sum of 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 in 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 of developing countries, in broad development of 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?" 1 4 3 The answer can be found in a postulate of 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 of less powerful factors. Furthermore, the separate examination of the more important causes permits their grading and thus the determination of the predominant cause in 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 of the details are false. Abstraction permits one to accede to a truth as a whole, not in detail . 1 4 4 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 of view of the particular. To abstraction in 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 in which it may intervene. The method that results is imperfectly predictive, because of its inability to grasp the totality of particular phenomena, 1 4 5 but it remains indicative of the trends that express the constancy of the predominant cause across variations in detail. In the instance under study here, i f the motivations for action are viewed as a play of forces in competition and opposition, the value of wealth then represents the most frequent human force, whatever the contrary influences. Wealth, because of disturbances, cannot explain all situations, only most of them, and even then only as a predominant force in comparison with other existing values, which remain present. 143. Nations Unies, Loi type de la CNUDCI sur le commerce electronique et Guide pour son incorpora-tion 1996 (New York: Nations Unies, 1997) at 1 [translated by author]. 144. A . Quinton, The Nature of Things (London: Routledge, 1973). 145. 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, in tracing a logic of uniform behavior, to go beyond the differences of taste, the plurality of values attached by different people to different goods, and the impossibility of determining objectively and intersubjectively the value of a good. This logic is translated by the principle of the unity of the market price for a good. 1 4 6 Thus, in the presence of many buyers and sellers for a given good, we could imagine that there w i l l be a plurality of prices, according to the interests of each person. However, the existence of the value of 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 of offering him this price. So, from the interplay of 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 in 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 of unanimity in the planning of activities and the division of needs. The unifying capacity of wealth is therefore quite considerable. It succeeds in combining a diversity of interests in a measure which is recognizable by all and acceptable for all . The general equilibrium to which wealth contributes, with the help of 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. 1 4 7 In fact, the search for the best equivalence between the ends and the means necessarily opens up different combinations. Now, innovation has a dual character which is in complete opposition to immobility. It is marked first of all by discontinuity. B y definition, innovation cannot come from some objective method; it is therefore not subjected to regularity in the periodicity of 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 of social evolution, a rhythm made up of 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 of others, to a renewed wish for stability and a return to equilibrium and wealth. In short, new combinations, in spite of their negative repercussions, are ultimately beneficial. They are part of a continuing effort to create wealth in the most satisfying manner possible, and they are valued for the utility that they represent in 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 laws for 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 ofsought for 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. R. Amissah , "The Autonomous Contract", online: University of Tromso <http://ananse. irv.uit.no/trade_law.. .s.Contract.03.10.1997.Amissah.html> 149. M . L. Cattaui, "The global economy: A n opportunity to be seized", online: Business World <http :/ /www. ice wbo. org/html/globalec .htm>. 150. R. Coase, "Industrial Organization: A Proposal for Research" in The Firm, The Market and The Law (Chicago: University of Chicago Press, 1988) at 57. 151. 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: 1 5 3 the justification of actions taken directly or indirectly, according to uniform law, resides in their consequences, that is to say in the state of things produced by these actions. In other words, we w i l l judge the virtuousness or the badness of 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 of happiness or the welfare of humanity, which can be reduced to a few hypotheses and deductions: no one, outside of 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 of interests and, consequently, an 152. 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 wil l 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." 153. D. R. Mapel & T. Nardin, "Convergence and Divergence in International Ethics" in T. Nardin & D. R. Mapel, eds., Traditions of International Ethics (Cambridge: Cambridge University Press, 1992) at 297. 69 optimization of collective happiness. 1 5 4 A s for wealth, this form of utility plays an essential role in the linking and coherence of activities that take place in a society. 1 5 5 These activities not only bind the interests of two isolated partners, who are part of a world that knows nothing whatever about their actions. On the contrary, even i f it happens that these interests have no effect on those o f 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 of life. On the other hand, negative externalities create a considerable potential problem. In fact, in accordance with liberty and wealth, a transaction presupposes i) the common initiative of 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 of everybody affected by externalities. Finally, insofar as these externalities are unilaterally endured, they cannot be the object of 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 o f exchange to the field of conflict and risk of coercion? 154. J . Riley, Liberal Utilitarianism: Social Choice Theory and J.S. Mill's Philosophy (Cambridge: Cambridge University Press, 1988). 155. 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 of 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. Util i ty 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 of happiness. The second path introduces the market, which possesses the virtue of permitting the convergence of all factors - including negative externalities - in a quantified measure that takes the form of an exchange price. Certain factors probably look undesirable in view of the necessity of maintaining social harmony and peace. However, they are ironed out in view of the evidence of a common interest for a quantum, money, which thus represents the medium of unification of all the variants of utility. The conception of society which is conveyed by utility can be further developed by stating that its ultimate locus of value is the individual . 1 5 6 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 of a community as wishing something, but this can always be brought back to, and broken down in light of, the individuals who are part of 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 of which he is a member. It remains that the value of a community does not represent more than the sum of the respective values of the individuals that compose it. From this, the primary function of the community, i f there is one, consists of protecting and supporting, in 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 of the general welfare? This problematic is concretely evident in the insurmountable tension that prevails between two modes of interpretation: the utility of the act and the utility of the rule. The first mode puts the emphasis on the act itself. The justification of an act depends entirely on circumstances: it w i l l be correct i f it maximizes utility, regardless of whether or not it conforms to otherwise pertinent rules. The second mode interprets utility on the basis of norms and principles established by the community. It takes for granted that the maximization of utility comes from the generalized observation of these norms and principles. The correct act is thus that which respects these norms and principles, even if, in a particular case, it does not attain the obj ective of maximization. 1 5 7 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.159 It expresses its concern with this subject, underlined in terms of the search for a 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) Good faith: 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. H. Veytia, "The Requirement of Justice and Equity in Contracts" (1995) 69 Tul. L. Rev. 1191 at 1206. 159. M . J .Bonell , An International Restatement ojContract Law: The Unidroit Principles of International Contracts Law (Irvington: Transnational Juris Publications, 1994) at 90. 160. 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'6' and loyalty,'62 just as much as it justifies an exception to the principle of the 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: contractual justice requires, as well, the satisfaction ofthe normal and predictable expectations of the parties.165 The argument of equilibrium and cooperation accounts for the presence of the just in the context of discovery of uniform law's own 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 of the diversity and contradiction of its many images. In the same manner, it would be risky to claim that uniform law clearly establishes a mature and proven conception of 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. 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." 162. 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." 163. 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." 164. See, for example, Principles, art. 7.1.6: " A clause which limits or excludes one party for non-performance or which permits one party to render performance substantially different from what the other party reasonably expected may not be invoked i f it would be grossly unfair to do so, having regard to the purpose of the contract." 165. 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 of value nonetheless. We 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 of the justice of uniform law should be viewed this way. The first kind of information it can yield concerns the raison d'etre o f justice. Why must we fear injustice and, correlatively, promote justice? 1 6 6 Two reasons, one cognitive and the other normative, can be adduced. First of all , injustice perturbs predictable models of relations that individuals create in order to harmonize their relations and make them functional; it thus menaces the whole logic of their behavior. In fact, this logic relies upon the possibility of predicting the fulfillment and consequences of 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. 1 6 7 Equality may be subdivided into equality of opportunity (to be re-subdivided between simple expectations and effective means of 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 in a single judgment. Furthermore, they are often contradictory: the equality of satisfaction presupposes a 166. P. Ricoeur, Le Juste (Paris: Editions Esprit, 1995). 167. 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 of 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 of 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. 1 6 8 Among these conceptions we find voluntarism, which equates justice with the expression of 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 of the party at fault. Finally, the impact of 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 of the pre-established division of 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 Va. L. Rev. 1175; I. Macneil, "Relational Contract: What We Do and Do 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 of the parties. In addition, prescription plays an important role: prolonged usage creates a right, in spite of the absence of agreement on this subject. Finally, the conception called finalism leads the analysis to the consequences of the execution of the contract incurred by the parties. More than the w i l l of the parties, it is the welfare of the contractants, the intrinsic values of things and the evaluation of the ultimate interests of 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 of a contract for a party might justify that this party be relieved of 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 of each person to make transactions as he pleases. The same type of concern prevails in the sphere of 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. On 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 of protection. Rather, it falls back upon the defense and the improvement of 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 in the following way. In a rigid contractual view, associated with 77 voluntarism, the degree of cooperation w i l l be lesser, because the obligations tend to be limited to the precise object of the contract. The optimal degree w i l l be reached under the flexible contractual perspective of 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 of each, and the type of articulation likely, both in 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 of justification, which corresponds to a sort of 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 of primacy over all others. A s regards values, the context of justification presents two distinct "tableaux". The first presents the formal content of the context of justification, while the second presents the procedure for the determination of 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 of instrumental reasoning and the weak presence of ends-based reasoning revealed in the analysis of the context of justification of the principles of thought. A s has been shown, this apportionment of relative prominence to these two kinds of reasoning has a distinct significance for the role of values: it renders them subordinate, secondary. 1 6 9 On the other hand, the incomplete state of Tableau 1 may also be accounted for by the specific procedure for determining values (see Tableau 2). Nothing guarantees the reliability of this procedure: it can thus constitute an additional factor in understanding the paleness of Tableau 1. This is in itself a sufficient reason, without being the exclusive one, to take an interest in Tableau 2. This tableau is also of interest because of the fact that, in some views, procedure directly influences the degree of acceptability of values in general, a consideration that is also important as regards the values that may be used as a "Rule of Law" of 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 in its State and intermediate versions, assigns considerable importance to the conditions of the formation of values in establishing its own legitimacy. Whatever the reason why this is not reflected in the tableau presenting the content of values, it becomes necessary to examine the parameters and boundaries of procedure. Furthermore, an emphasis on procedure permits us to go beyond the inherent immobility of the formal presentation of values that are taken for granted, by showing how uniform law is capable of making them evolve. 169. See Part I, Chapter 1, above. 79 1. Tableau 1: Content Depending on the version of uniform law that is considered, the definition of 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 of the United Nations. This body of orientations forms a reservoir of superior and decisive considerations in the light of which the legitimacy of uniform law may be evaluated, whether from up close or far away. Going from the general to the particular, we observe this in Tableau 1. First of 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 of actors under the Convention as different in background and circumstances, yet entitled to equal treatment and respect." 1 7 0 In the opinion of Kastely, this preeminent value of equality provides, together with others, a coherence which is indispensable to the language of 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 Law and Business 574 at 594. 80 prevailed at the time of the creation of U N C I T R A L , which is at the origin of the Vienna Convention and other instruments of uniformization. Initially, they stressed the importance of international commerce and the conditions of its realization in 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 of international trade, therefore, would meet real needs of 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 of respect for sovereignty and national independence, non-intervention in the domestic affairs of States and mutual benefit. 1 7 1 A t the same time, it had become clear that the uniformization of 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 of 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 of 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 session172. The frame of reference of uniform law thus became more specific than it had been at the time of the creation of 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 in light of a more recent reflection and a dynamic that culminated, according to J . C . M . Paul, in an international law of development (known as I L D ) . 1 7 3 The I L D confirms the preponderant role of juridical instruments with respect to development. 1 7 4 According to Paul, the I L D subordinates the legitimacy of actions undertaken in 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 self-managed development efforts in all spheres relevant to well-being; respect and protection of rights and liberties of the person; elimination of forms of discrimination founded on sex or ethnic background; protection of the environment and a favorable bias towards avenues of sustainable development; 172. See the Preambule of the Vienna Convention, supra note 4. 173. J .C .N. Paul, "The United Nations and the Creation of an International Law of Development" (1995) 36 Harv. Int'l L. J . 307. 174. Ibid, at 307-309. 82 respect and protection of cultural diversity; a favorable bias towards the emergence and consolidation of democratic modes of representation; accessibility of the means necessary for the full efficiency of the abovementioned principles. 2. Tableau 2: Procedure I submit that uniform law conceives its procedure for the determination of 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 of its creation. In accordance with the report of the Secretary-General entitled "Progressive Development of the Law of International Trade", 1 7 5 the General Assembly articulated the mandate of U N C I T R A L along various axes emerging from one or another of three basic elements of communication. 1 7 6 First of all , the leadership and the credibility of U N C I T R A L were dependent upon its capacity to make known to the greatest number the various types of information relevant to its mission. 1 7 7 This element of dissemination was followed up, secondly, by another element, broad-mindedness.178 On 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 in the development of uniform 175. Progressive Development of the Law of International Trade: Report of the Secretary-General, 21 U.N. GAOR, U.N. Doc. A/6396 (1966). 176. G.A. Res. 2205 (XXI), U.N. Doc. A/6396 (1966). 177. Ibid, at par. 8(e), (f), (g). 178. Ibid, at par. (a), (b). 83 law. Dissemination and broad-mindedness worked together towards the creation of the third element of communication, which consists of rendering common.179 The idea of community, in fact, was omnipresent in the mandate of U N C I T R A L . Subsequent developments would reaffirm this orientation of 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." 1 8 0 This turns out to be necessary for the attainment of an international community, without which the goal of uniformization would remain a pure abstraction. 1 8 1 The dissemination of information, deliberations, "sense of shared interest,"1 8 2 the utilization of discourse, and so on, are all examples of the modes and provisions belonging to communication that can be drawn from the Vienna Convention and that support the emergence and flourishing of 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." 1 8 3 Having formulated and backed up this initial proposition, let us now examine the communicative procedure characteristic of uniform law in greater depth. 179. Ibid, at par. 8(c), (d). 180. Kastely, supra note 170 at 577 [emphasis added]. 181. "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. 182. Ibid. 183. Ibid. 84 The basis of the determination and the articulation of values depends upon the relationship between procedure and the phenomenon called the antinomy of truth. This is how A . Wellmer presents this phenomenon in the perspective of a communicative paradigm: When we communicate, present or write something, we inevitably make claims to truth, or rather... claims to truth of 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 of 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 of 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 in 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 of schemes of argumentation or the inherent persuasive force of 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 in question, exist - somewhere. Or else should we rather admit that truth is always "relative" to cultures, languages, societies, even individuals? If 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 of truth." 1 8 4 What is the position of uniform law in relation to the antinomy of truth? One way of 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, histori-cisme et relativisme (Paris: A lb in Michel, 1996) at 177-178 [translated by author]. 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 of ethnocentrism or pluralism in the interpretation of uniform law, or those that hold to a hard and fast obj ective of uniform interpretation.1 8 5 On the other hand, essentially skeptical arguments of the idea of uniformization, 1 8 6 or those that hesitate to recognize the simply functional character of uniform law in the present circumstances, could serve to illustrate support for relativism. 1 8 7 Nonetheless, I believe it more proper to affirm, on the basis of the interpretation of two sections of Kastely's analysis, that uniform law more often uses strategies to escape the antinomy of 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, in contrast, begins with the assumption that a community may be created by choice and agreement.1 8 8 In strategic terms, a serious interpretation of the affirmation would consist of the 185. 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. 186. 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 internatio-nal : Realite ou utopie?" (1996) R.R.J. 933. 187. See the comments of A. Rosett in "Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods" (1984) 45 Ohio State Law Journal 265. 188. 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 in the preamble to the Vienna Convention. 1 8 9 This differential element may be interpreted as signifying that there is not, overall, an obvious unanimity of values or of the hierarchy of values. Thus, the challenge consists in asking what general principles could the members of the international community agree upon, whatever their differences of views and of interests, seeing in such general principles the prerequisites of 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. How 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 in each particular case? It is here that both individualism born of consensualism and abstraction born of 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 of 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, Philo-sophie 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 of 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, in good faith, in these situations (I must be this other). It is this "decentering" of the interested party which would permit him to choose the best possible values. From a communicative point of view, this strategy has one important drawback: by its marked insistence of the "self , it comes back, finally, to a form of 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 of a cost/benefit calculation of 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 of uniform law is not excluded a priori. But in essence, it can only translate a gentle form of egoism purged of concrete empirical interests. Thus it is not required, in all logic, that the interested party actively inform himself or be informed of the experience of others in order to arouse at least minimal discussion. A t the same time, the abstraction of the interested party from the position that he occupies in society does not necessarily lead to the recognition of the other. It is limited to constraining the interested party to imagine himself as the other, which remains different from forcing him to put himself concretely in the place of 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."1 9 0 Is it possible to mitigate the communicative inadequacies of 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" 1 9 1 offered by it. Her words open the door to another strategy synthesized in the following passage: What is called for, in essence, is the development of a jurisprudence of international trade. This is the heart of the rhetorical aspiration [of the Convention]. Its success.. .directly depends on the achievement of this goal . 1 9 2 I interpret this statement as follows. Contrary to the first argument, founded on abstract calculation, this one tends towards an ideal speech situation. 1 9 3 Here, the attainment of the best possible, as well as the mastery of the differential element, are credited to the community that can best realize the conditions of an equal participation in discussion and in deliberation. The whole should facilitate, given the diversity of points of 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. Ibid. 191. Kastely, supra note 170 at 600. 192. Ibid, at 600-601 [emphasis added]. 193. 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 of the main tool of communication of uniform law that is established by this jurisprudence of 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 of all , circumstances of interest must be made known to the community in the terms in which they are experienced, interpreted and evaluated by the interested parties. Each needs the others' stories in 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 of 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. 1 9 4 A t the present time, the general doctrinal trend is to translate the evaluation of the power of the case law of international trade in terms of challenges. 1 9 5 The novelty of State law, combined with the attention drawn, and the challenges uncovered, by its interpretive dimension, 194. 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). 195. P. B. Stephan, "The Futility of Unification and Harmonization in International Commercial Law" (1999) 39 Va. J. Int'l L. 743. 90 clearly show that nothing has been won yet. 1 9 6 A similar situation prevails in intermediate l aw. 1 9 7 A s for the lex mercatoria, its renewal in today's conditions and those of tomorrow forces us to admit that it is also in the process of revising its optic of communication. 1 9 8 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. 1 9 9 196. 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. 197. A . M . Garro, "The Contribution of the UNIDROIT 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. 198. T. E. Carbonneau, ed., Lex Mercatoria andArbitration: A Discussion ofthe New Law Merchant (New York: Juris Publishing, 1998). 199. See Part III, Chapter 1, below. 91 Final remarks In this first part, I have explored the background of uniform law. This exploration was necessary because of the methodological premise laid out in the introduction, according to which the sense of the explicit arguments used in the discourse of uniform law depends on a "deep-structure" - that is to say a reservoir of assumptions, a background - which has to be exposed to view. In doing this, I have brought to light a series of little stories, of philosophic terms, divided into two chapters. The first is devoted to the principles of thought. It shows that arguments of good faith, the autonomy of the w i l l and juridical convergence (the context of 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 of the concrete intention of the parties, of growth, of the maximization of interests, and of equality and cooperation among parties. They reflect respectively the values of liberty, wealth, utility and justice (the context of discovery). These values remain subject to a context of justification based on the norms of an international law of development (ILD) and a communicative paradigm. These little stories can be read independently or somehow tied in 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 of uniform law. Having taken this step, it is now possible to proceed with an examination of the strengths and defects of 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 Fol lowing the procedural method outlined in part I, I w i l l now take a moment to formulate some preliminary remarks in order to properly situate the ins and outs of the critical analysis of the conservative consciousness of uniform law. Preliminary remarks The criticism corresponds to the intermediate phase of the Koskenniemi triptych as adapted for the purposes of 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 of the criticism and nonetheless permit myself to question several areas of the conservative consciousness, as well as determine its overall value. Many 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 of the opinion that this reproach does not, in itself, offer any guarantee of 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 in 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 of critical reasoning in our 94 social l ives ." 2 0 0 In this perspective, the critical vision that I propose is one that exists within the confines of the imagination (A). It is in fact a natural development of the element of astonishment that underlies this thesis 2 0 1. After having fully explained the nature of this 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 legal 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 of this project in 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 of law and development. This is the case because I am probably persuaded and stimulated by the call of many- Sautet among them-to 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 of the existence of an innate faculty within the researcher and the individual in general, to overcome the tragedy that, according to Hegel, consists of being enclosed upon oneself. 2 0 2 This tragedy has many shapes, and is felt differently from one person to another. It nonetheless obeys a particular logic: it tends 200. M.C. Nussbaum, "Response: Still Worthy of Praise" (1998) 111 Harv. L. Rev. 1776 at p. 1795 201. See Introduction, Prolegomenon, above. 202. 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 of novelty is at its realm. S. Kokis , 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."2 0 3 More specifically, the internal representation is the fruit of 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 of 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." 2 0 4 In the words of Kokis , the narrative of every individual takes this shape: The internal experiences retain a certain substantial permanency, for with the assistance of linguistic syntax, the often heterogeneous elements of memory are organized in a sort of unitary fashion that evolves as a narrative [...] We must therefore continually correct the elements of 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 of our universe. The false reasonings, the open ellipses, the overwhelming analogies and all sorts of mythical discourses are abundant in the inner narrative tissue that we term personal identity. The necessity for a coherent togetherness and the obligations of syntax are so powerful that even the best of memories is weakened in order to soften the corners and enhance the coherence of the narrative. 2 0 5 In this context, the creation consists of "freeing thought from the ties of concrete feeling, [which takes place by means of a] process of remoulding facts of human experience." 2 0 6 In other terms, the creation resembles to acts of decentration, of rearrangement of what is real, which necessarily implies a certain destabilization, a fracture, an uprooting of the self, all of 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 of the path of creation. If it is true that we have to learn to move the pieces of the jigsaw of l i f e 2 0 7 , as we may understand it to be 204. Ibid, at 33 [translated by author]. 205. Ibid, at 33-34 [translated by author]. 206. Ibid, at 26 [translated by author]. 207. 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 in 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 of Sousa Santos. 2 0 8 1 deem it preferable to see, in this passage, an opportunity to develop one's own strength and confidence 2 0 9 in exploring the unknown and a springboard toward something even more creative. Yet what exactly are we looking to find? 208. de Sousa Santos, supra note 14 at x. 209. 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 of I. Prigogine, who states that "the possible is richer than the real ." 2 1 0 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? Why are we so afraid of discussing the possible, or exploring the possible? We must move not Utopias, but utopistics, to the center of 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 of 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 of choice is greatest. When is this? Precisely when the historical social system of 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 in which we are now living and shall be l iving for the next 25-50 years. 2 1 1 In comparison with the process of defamiliarization, the notion of 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 now. 2 1 2 210. I. Prigogine, La fin des certitudes (Paris: Odile Jacob, 1996) at 230 [translated by author]. 211. Wallerstein, supra note 5at 1254-1255. 212. 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 of beginning with facts of immediate experience and their remodelling, Utopian thought "leaps upon the final result, the ends that one is meant to discover." 2 1 3 It is thus this particular vision of the criticism - defamiliarization, followed by Utopia -that I will apply to the core of the conservative consciousness analysis. What remains is to describe the nature and sequence of 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 of modernity to that of post-modernism and the conservative characteristic having been ascribed to the consciousness presently dominating over uniform law. Unt 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 of the premise, this is imposed in 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 of 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 in 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 of 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 of reorientation in which one can recognize the emerging route of law and development. This should be considered as the pre re-formulation phase of 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 of 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 of uniform law. On the whole, Part II w i l l allow me to attain the final phase of 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 of uniform law (Part III). 101 Chapter 1: The Conservative consciousness, modernity and modern law Moderni ty 2 1 4 and modern l aw 2 1 5 refer to a particular socio-historical context. They reflect the mode of 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 of a lengthy intellectual process, o f an accumulation of a series of 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 of view, modernity is based on two major premises, reason and individualism, and is positioned as a dynamic model . 2 1 6 214. J . M . Domenach, Approches de la modernite (Paris: Ellipses, 1995); J . Habermas, The PhUosophical Discourse of Modernity (Cambridge: MIT 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). 215. H. J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983). 216. R. Tarnas, The Passion of the Western Mind (New York: Ballantine, 1991). 102 Historically, the premise of reason marks a rupture from the submission to the laws of nature. The belief in the virtues of reason w i l l entail a general process of rationalization. 2 1 7 This process w i l l result in a technical, economic and political organization and w i l l be further developed through industrialization, capitalism and the construction of 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 of reason is completed by a series of other beliefs, ones that constitute the many myths that are inherent to modernity: belief in the virtues of 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 in the Occident, called to serve, as the very expression of reason, as models of reference.2 1 8 Modernity also relies on another premise, individualism, which places the individual in the core of society. Individualism affirms the uniqueness of every individual. Similarly, individualism allows every individual a certain margin of autonomy and liberty so that he may live in conformity with his own uniqueness. Individualism also implies a certain relaxation of community ties in order to provide for the construction of an individual-based social and political organization. A s a result, the individual is the cornerstone of everything. The individual metaphor transcends the private sphere, where the individual is displayed as a human being, as 217. M . Weber, Economie et societe, trans. J. Freund (Paris: Pocket, 1995). 218. 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 of individuals, the State being the mere result of their common interests and the expression of their common w i l l . Different factors are at the source of the dynamism of modernity, an expression that evokes a great diffusion from an Occident-born model. A . Giddens 2 1 9 , for one, attributes this dynamism to the following characteristics o f modernity: i) the dissociation of time and space, which allows for a rationalized organization of social relations and a unification of spacial-temporal frameworks, ii) the derealization of social systems, made possible by the creation of universal exchange instruments and the bringing into play of professional know-how, all relying on confidence; i i i) institutionalized reflexiveness, which entails a constant examination and revision of social practices in the light of new information. More specifically, I would emphasize the significance of three aspects born of modernity. First aspect: Modernity, knowledge and progress. This first aspect pays tribute to the crossbreeding and evolution of certain Greek and Hebrew roots of modernity, of which the ultimate goal was to place the individual at the center of 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 of 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 Old Testament. With regard to knowledge and progress, the features of modernity, these origins and their gradual evolution have followed a shaky and irregular path. In the beginning, the religious notion of time as linear phenomena is charged with supernatural significance. It seeks to express each and every aspect of 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 of linear time w i l l eventually be caught in the ideology of progress. But in order to play a significant role in the development of 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 of infinite and thoroughly homogeneous duration. 2 2 0 Due to its homogeneity, time becomes divisible into equal parts, and becomes therefore measurable and quantifiable. With space, which is also infinite, homogeneous and quantifiable, Newton creates his system of 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 of efficiency and of 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. 2 2 1 It is a task entrusted to knowledge at the peak of its development, which allows one to confidently envision the radical improvement of the human condition. Nonetheless, i f the significance of the growth of 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 Old 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 of its moments. A n d this goal is nothing else but the realization of a kind of Garden of Eden. In this perspective, the relevance of linear scientific time is limited to being a tool in 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 of the frontiers of 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 of 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 of view is recognized and further distinguished within certain sub-concepts. The sub-concept of individuation pushes individual differentiation to the point of separating human beings from social relationships. In the words of 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." 2 2 2 Seen from the initial modernist perspective, individuation is associated with the large scale ideas of purity, progress and freedom: it serves to liberate the human being from the weight of tradition, outside expectations and hierarchical arbitrariness, to the advantage of self-determination and personal self-suggestion. Another sub-concept, one of detachment, finds a striking illustration in the Cartesian formulation of cogito ergo sum, this being the famous scission between the thinking abilities of the human being and the rest of his universe. It delineates a separation of the subjective mind from the objective material world, of the subject from the object. A s well , it implicitly favours reason over experience, that is to say, the product of 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 of 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 of the object and the subject becomes the cornerstone of the autonomous human w i l l . This being a purified and superior milieu, the human w i l l dispose of 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 of a profound sense of existence. The sub-concept of 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 of individuals from their particular social settings and attachments in an effort to ascertain which propositions would have appeal to persons solely in their capacity as rational agents." 2 2 3 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 of 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 of desirable objects is proportional to knowledge; and knowledge, through its gradual evolution, awakens these desires by continually presenting a growing number of desirable things. On an economic level, these principles, together with other characteristics of modern thought, confirms a vision of opulence. 2 2 4 B y definition, opulence assimilates the development of society to a process of economic growth. In the analysis, this is demonstrated by the taking into consideration of 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 of evolution. A linear vision that is such that societies are called to journey across identical steps toward the desired level of 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 of 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. If every individual pursues his or her own personal interest, it is all of society that benefits and achieves maximum well-being. A l l of this occurs as i f harmonious and efficient leadership operates in such a way so that the sum of 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 of convergence in a specific institutionalized context, namely the competitive market. A n d it is comforted by the powerful paradigm of rational anticipations. This paradigm postulates that every active economic policy is thwarted by the predictions of economic agents that incorporate the effects of 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 of these agents. The latter w i l l use all of their knowledge to overcome the effects of the policies. This then serves to favour and legitimize pan-economic 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 of modernity, reason and individualism, are deeply rooted in the conservative consciousness. This is notably reflected in the first strategy advanced by the conservative consciousness in order to escape the antinomy of truth. This strategy consists, as mentioned above, of 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 of others. The values of liberty and utility, considered respectively from the point of view of rational actions and that of the individual as privileged interpreter of 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 of a nation (or a country) instead of the individual does not significantly alter this way of reasoning, since any notion of a collectivity can be reduced, at the very limit, to individualist considerations. The factors that are inherent to the dynamism of modernity are also observable within the conservative consciousness. The latter is not inert, amorphous, nor discarded. It is altered and reworked in order to allow the greatest possible audience for uniform law and attach an indubitable character of normality to it. In this regard, we are forced to recognize the contribution of the phenomenon of professionalization: following I l l the example of modernity, uniform law is spreading under the effect of the models and typologies advanced by members of the legal profession 2 2 5 and the pub l ic 2 2 6 and private administration. 2 2 7 In so doing, uniform law becomes more user friendly, thus readily exportable from one place to another. Secondly, the context of justification of the principles of thought involves the integration of the unique hybrid aspect that I have entitled "Modernity, knowledge and progress". The linear nature of time, in its scientific version, is readily self-observable in 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 of 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 in the mastering of a surrounding world that, apparently, is becoming more and more 225. 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). 226. 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). 227. The ICC (International Chamber of Commerce) is an example of a private organization very active in the field of international uniform commercial law. See "About ICC", 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 of the latter. What emerged from the analysis of the context of justification is the presence of a modest ends-based thought, founded on commerce, in the midst of the conservative consciousness. This affirmation relies on different elements: a formal understanding of trade, a commercial end left in the rough, unexplored and closed in upon itself. A l l of this serves to benefit an enchanted vision of commerce, one that evokes the search for the Garden of Eden that is characteristic of the idea o f progress. A profound belief in the virtues of commerce and its benefits is at the root of this level offaith. Responding to the needs of international commerce or favouring the development of international trade do not lead us nowhere: they lead us towards the realisation of a truly humanist vision that is within arm's reach. In addition, the dichotomous point of view that transcends modernity, is found in the conservative consciousness. The latter separates the means from the ends, as appears from the value of liberty. The tastes (ends) of individuals are not discussed because of their insurmountable diversities. Nevertheless, the identified strategies (means), the very root of reason, are clearly relevant. In addition, the conservative consciousness, on the basis of 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 of uniform international commercial law and all other types of good faith. More specifically, individuation, by the power of self-determination arid self-suggestion that it attributes to every individual, underlies the dynamism of 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 of overcoming any constraints inherent to any aspect of the social fabric. In a similar way, the unifying capacity of the value of wealth would be much less important were it not under the influence of the separation of subject and object carried out through the element of 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 of a uniform market price for a good or service. Finally, the combined effects of disconnection and reduction associated with segmentation permeates the epistemological postulate underlying the value of wealth. Through disconnection and reduction, it is indeed possible to accede to this comprehensive truth that is represented by the pursuit of wealth, and to make of it a method of analysis as well as a means of predicting future behaviours. The vision of opulence completes the correlation between modernity and the conservative consciousness. Straightaway, the very high quality of uniform law as knowledge is a perfect complement to the always more premise that it is at the root of opulence. This top-level 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 of 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. On 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. Util i ty 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 of instrumental thought, utility can seriously claim that it leads to a maximal satisfaction o f the individuals. On the other hand, the shape of utility following which the individual is the key to everything is inherently linked to other considerations of the vision of 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 of the individuals of which it is composed; the community serves above all to protect the individual; in sum, when utility is expressed in these terms and furthermore falls back upon the virtues of convergence deployed by the market, it draws from an opulence that also holds a great deal of confidence in the individual and competitive market context. 115 B. The correlation with modern law 1. Main features of modern law L a w and modernity are very closely related. On the one hand, the values and the methodological foundations of modernity permeate every aspect of law, which entails a particular juridical representation. On the other hand, law serves as an important catalyst in the rationalization of social and political organization, upon which it projects its attributes of objectivity and necessity. L a w therefore serves both as expression and vector of modernity. 2 2 8 This reciprocity constitutes a key element in the exactness understanding of the four main features of modern law. Modern law and Individuation. The notion of the individual is one of the pillars of modern law. Its aspect is two-fold. From a fundamental point of view, the individual precedes social organization; moreover, he is the bearer of subjective rights. The individuation at the heart of modern law has its theoretical roots in the doctrine of natural law. 2 2 9 This doctrine is founded upon the notion that the individual comes before the 228. "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]. 229. 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 of a social contract, concluded in the interest and utility of every individual. On the mere basis of his human nature, the individual naturally bears certain rights. The State, moreover, is expected to guarantee the provision of 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 of these natural rights, rights that are both permanent and inalienable, becomes the responsibility of the political and social organization. The same train of thought is prevalent with respect to the idea of a nation, considered to be the logical prolongation of the individual. The nation, that is to say the grouping together of individuals, constitutes a collective subject that is also a bearer of rights. It exercises its rights due to its sovereignty over a number of matters, rights that it may exercise through the support of the State. Liberating and protector, law also becomes synonymous with benevolence and charity. It preserves the equality of 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 of justice. Modern law and Reason. Modernity transforms law as it was previously known, and confers upon it a number of new attributes. 117 The creation of an autonomous legal field and the unification of law are important aspects of the transformations that are issued from modernity. 2 3 0 The autonomy of law, for one, derives from a movement of 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 of 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 of the State. The latter transforms the multiplicity, juxtaposition and entanglement that are characteristic of the juridical sources and instances that had been known until then. Henceforth, the State imposes itself as being the exclusive source of law. It replaces the pre-existing juridical orders, thereby becoming the unique legal frame of 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 in order to suppress the violations of its rules. In short, the omnipresent State fosters the transition from a pluralistic conception of 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 of law corresponds to that of 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 of a coherent and unified whole, which gives it a sense of 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 of abstract concepts, and masters it through the assembling o f neutral rules of great stature. Finally, the law is an agent of stability. Through the projection of 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 in 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 of his actions in advance, and can plan accordingly. A s a vector of modernity, the law is placed under the realm of reason and consequently provides the guarantee for an organized, peaceful and unified society. It transmits the message to every individual that he evolves in an intelligible totality. The law thus acquires a "universalist posture" 2 3 1, strengthened by the "force of the form" 2 3 2 , a phenomena that P. Bourdieu describes as follows: I f the rule of law assumes that there is a junction between an adhesion to common values [...] and the existence of 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 of learning), above the spatial (between the territories) and temporal (within the generations). [...] Written law favours the autonomization of 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 of the 231. Bourdieu, supra note 228 at 5 [translated by author]. 232. Ibid, at 14 [translated by author]. 119 exterior effects of coherent rationality. 2 3 3 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 of the impersonal subject we call the State. On 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 of the legal profession. 2 3 4 Modern law and Contract. Following the reassuring approach of modern thought, the contract fixes obligations. This dimension can be demonstrated in three ways. Firstly, on a temporal level, the fixation symbolizes that the contract is reputed to be localised in 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 of "presentation" 2 3 5 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. Ibid, at 15 [translated by author]. 234. Ibid, at 5. 235. I. R. Macneil, "Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassi-cal, and Relational Contract Law" (1978) 72 NW. 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 of motivations of each contracting party to mainly pursuing his own ends, which is synonymous with both antagonism and egoist maximization of interests. In view of these contradictory motivations, the dimension of fixation of the obligations would allow the parties to control and stabilize them and to avoid seeing them unexpectedly modified. 2 3 6 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. On the one hand, choice is at the centre of human activity. The human being can grasp the reality that surrounds him and be in a position to see the entire spectrum of possibilities open to him. This contact permits him to express his preferences towards such or such possibility, that is to say to appraise the relative value of one or another option. On 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 of fact, the human being is a stable person, consistent with himself, reasonable and capable of making the right choice. Given his aptitudes, one is allowed to be uninterested in 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 of view. The principle according to which the obligations of a party simply reflect the consequences 236. C. Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard U.P., 1981). 121 of his choices flows from the joining of the concept of 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 of each person's capacity. Modern law as Strong Law. Because of its dependence on reason, justice and security, law naturally becomes the most convenient mode of structuring and regulating social relations in modern society. It shows the way to social evolution and coordinates the action of the constituting elements of 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 in 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 of law as rational mechanism is clearly linked to an idealized conception of law which cannot be found in the concrete reality of everyday life. The idea of a legal order based on a rigorous sequence of normative propositions and governed by the laws of formal logic is but a product of reason and is equivalent to a kind of belief. This idea nonetheless represents a determining element of the power of law, o f strong law. 2 3 7 237. 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. The correlation A t its very basis, the correlation between modern law and the conservative consciousness centers on individuation. Modern law is shaped by the idea of the legal pre-existence of the individual in relation to the State. A n d this idea is rooted in the background of the argument of the autonomy of 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 of the contract. Finally, due to its apparent ability to be invoked in conformity with individual, national and State aspirations, the argument of the autonomy of the w i l l legitimates the slogan advocating the development of 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 o f the Vienna Convention, and that of the maximization of interests based on the autonomous contract concept, consolidate as well the idea that, in the conservative consciousness, the w i l l o f the parties precedes the State. A s a matter of fact, the State here plays a role which corresponds to that of the State in 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 of securing the enjoyment of individual rights, their free transfer and the guarantee of 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 of its conceptions. Even more, it can do it in distributing equitably the fruit of wealth. Pushing the correlation further, the overlapping of modern law and reason with the background of the argument of juridical convergence is striking. Firstly, the transformations of law derived from modernity partake of monism. Due to the centripetal force of 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 of juridical convergence perfectly corresponds to the monist perspective of 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 in the linearity and the determinism which influence the simplifying thought of the conservative consciousness. A s regards linearity, it leads to the recognition of a unique point of view to describe and understand reality and constitutes a kind of generalization equivalent to that which is found in modern law. A s regards determinism, it takes up the attributes of modern law relating to the complete and harmonious integration of its norms, and to its stability. A s a matter of fact, by definition, determinism ensures constancy in the reaching of expected results. A n d i f it is capable of doing so, it is because it knows how to establish the relevant links among its constituting parts or to systematize them. Thirdly, the universalizing and 124 transcendental perspectives of modern law agree with the undoubted character of normality of uniform law. Viewed as the opposite side of irrationality and inescapable, uniform law cannot but live through time, space and spirits. A s for the idea of fixation of the obligations which is at the heart of modern contract, it spreads throughout the conservative consciousness. In its temporal dimension, this idea partly explains the form taken by the argument of good faith. For instance, the continuity which stamps the environment of the contracting parties is equally present in the argument of good faith as understood by the lex mercatoria: under the guise of the quest for identity, good faith displays constancy and permanency. Moreover, the phenomenon of presentiation, that is to say the synthesis of the various possible times of the contract into one unique time, is assimilated to the good faith of State law which, under the guise of non-contradiction, constitutes an element of unity as regards the other peripheral norms. Besides, the fixation of the obligations that is aimed at controlling antagonisms and excessive egoism and, consequently, at avoiding seeing the obligations unexpectedly modified, is clearly reflected in the role conferred to society through the value of freedom. A t that level, it is important to recall that human nature and human action constantly oscillate between satisfaction and dissatisfaction. A n d that this pendulum has, as a corollary, rarity, whose overcoming can be the source of conflicts. Hence, the role of society accounts for the role of contract: it consists in deciding between interests and in stabilizing the mutual relationships. Finally, rational choice expresses the faith and confidence demonstrated by modern law towards the individual endowed with reason, able to determine what is good for him and to assume the consequences of his actions. Rational choice also demonstrates the 125 neutrality of modern law towards individual preferences. Through its principles of thought and its values, the conservative consciousness firmly adheres to this vision of things. A l l o f its elements - stability, precision, simplicity, freedom, utility, etc. - ensure that this is so. The intellectual guides of the contract are first and foremost the contracting parties themselves. Admittedly, they can make mistakes or blunders and they wi l l be, i f the case arises, answerable for their actions. However, this does not put into question the fact that what they think is very likely to be legitimate for the community. The correlation is completed by the borrowing of the image of modern law as strong law by the conservative consciousness. The transfer is visible at several levels. For example, the attributes of modern law form the basic frame of reference chosen to trace and coordinate the social evolutionary cycle. A s well , these attributes are such that they render the law subject to an absolute respect: it is the basis of the optimism that everyone feels toward life. Thus, this saintly legal structure is put in evidence in the instrumental thought process of the conservative consciousness. The result is that uniform law is automatically tied to the joy of l iving. It is assumed that it w i l l generate an overall advancement of all plans and for all . The firmness of this conviction leads to an idealisation of uniform law. Like its modern counterpart, uniform law comes to represent reality. The "tableau" relative to the content of the context of justification of values can clearly attest to this. We have in fact already witnessed to what point the conservative consciousness fits closely the notions of equality, world harmony, well-being, and other elements that are actualized within the international law of development. A n d everything indicates that we can see there a durable union, due to the perspective following which "(i)t is particularly 126 through the development of legal instruments that the world community of nations attempts to provide for the basic conditions for social progress." 2 3 8 Moreover, this idealized image of uniform law also allows for it to be reconciled with the providentialist and finalistic conceptions of the value of justice: benevolent, it derives occasionally inspiration from this providentialism and finalism, even though these notions of justice may appear somewhat removed from reason and individuation. A t the end of the line, it appears that the symbol of modern law as strong law has acquired its proper position within the scope of uniform law. This could be illustrated by the transformation of modern law as strong law into one of uniform law as strong law. The demonstration of this correlation of the conservative consciousness with modernity and modern law having been undertaken, it appears necessary to discuss at present the critical process of defamiliarization, or the pre-formulation of uniform law. 2 3 8 . World Summit for Social Development: An Overview Report of the Secretary-General, U . N . D o c . A / C o n f . 1 6 6 / P C / 6 ( 1 9 9 4 ) at par . 1 7 2 . 127 Chapter 2: Defamiliarization, or the pre-reformulation of uniform law A s announced, the step of defamiliarization can be divided into an analysis of the factors conducive to the rupture of the conservative consciousness of uniform law (A) and the paths of post-modernist reorientation that are thereby imposed (B). ; A. The Conservative consciousness' rupture The conservative consciousness of uniform law substantially integrates the principles of thought and the values of modernity and modern law. Thus, it appears that the legacy of modernity is actually the object of intense scrutiny. Terms such as crisis, shock, and others, are there as a tribute to the underpinnings, landmarks, and solutions that are distanced from their original mission, or that are entirely brought back into question, stimulating and opening the pathway toward new post-modernist avenues. Taking for granted, as I have previously stated, the idea of a changeover of the contemporary world from the realm of modernity to that of post-modernity is one thing; to understand the reality o f this phenomenon is another. O f course, the exacerbated eclecticism of the descriptions, analyses and appreciations of the changeover in question creates a palpitating zone of observation. However, as a result, the equivocal, the interference, and the dispersal that cover this zone can rapidly disconcert the observer. Nonetheless, I w i l l present, within the confines of this text, three series of considerations that w i l l support, in their own way, the 128 hypothesis o f the changeover. The first series involves a discussion of extra-juridical elements (1) , while the second deals more specifically with the arguments relative to the law in general (2) . The third exposes the alternative elaborated by B . De Sousa Santos 2 3 9, whose interest resides in the lineage he shows to exist between the law and the "non-law" and in the transnational dimension of his analysis (3). Put together, this may seem somewhat eclectic, thereby reflecting the general allure of current thought. 1. Some extra-legal elements of rupture A n interpretation of the changeover presents it as a form of a challenge, one that is largely up to the modernist quest to overcome. C . Taylor incarnates this appeal to rediscover the profound sense of modernity, to redefine its authenticity in order to heal the many malaises that it has itself engendered.240 In effect, according to him, the cardinal axes of modernity often point in the wrong direction.241 The advancement of individualism has favoured a too great withdrawal into the self. The instrumental thought has unduly contributed to a rupture of the bonds of collective allegiance due to a marked concern for efficiency on an individual level. A n d the liberating hope of modernity has been greatly attenuated before the hegemonic forces of the market and of the State. In order to correct this fault, Taylor proposes "a renewed understanding of modernity"242 on the basis of a conviction that is imperative to his argument: "[Understanding 239. Supra note 14. 240. Taylor, supra note 14. 241. C. Taylor, Grandeurs et miseres de la modernite, trans. C. Melancon (Montreal: Bellarmin, 1992). 242. Taylor, supra note 14 at ix. 129 modernity aright is an exercise in retrieval." 2 4 3 For Taylor, the confusing idea that we have of ourselves at the present time, and the worries that it in turn creates, are due in great part to the lack of knowledge we possess with regard to the fundamental dimensions of modernity. To discover the image of these "unarticulated" 2 4 4 dimensions of the modern identity should produce a two-fold effect: "first, how much we are all caught up in it, for all our attempts to repudiate it; and second, how shallow and partial are the one-sided judgements we bandy around about i t . " 2 4 5 According to Taylor, the reformulation of the genesis o f modernity must indeed spark the complexity and the richness i) of modern inwardness, that is to say the sentiment of interior depth that every individual feels as "I"; ii) the affirmation of ordinary life, be it the family and the workplace; and ii i) the expressivist notion of nature "as an inner moral source." 2 4 6 Other approaches concur with this Taylorian strategy of anti-rej ection and reaffirmation of modernity. 2 4 7 However, others still can be found at the opposing end, by placing modernity squarely upon the dock. Here, the changeover receives a different interpretation: it "announces 243. Ibid, at xi. 244. Ibid. 245. Ibid, at x. 246. Ibid. 247. A. Giddens, Les consequences de la modernite, trans. O. Meyer (Paris: L'Harmattan, 1994). A. Touraine, Critique de la modernite (Paris: Fayard, 1992). 130 or implies that a rupture has occurred, an irreparable break with the past, and that nothing can ever be the same again." 2 4 8 P. M . Roseneau offers a gripping portrait o f a variant of this interpretation that she terms the sceptical post-modernism: The sceptical post-modernism (or merely skeptic), offering a pessimistic, negative, gloomy assessment, argue that the postmodern age is one of fragmentation, disintegration, malaise, meaninglessness, a vagueness or even absence of moral parameters and societal chaos. Inspired by Continental European philosophies, especially Heidegger and Nietzsche, this is the dark side of post-modernism, the post-modernism of despair, the post-modernism that speaks of the immediacy of death, the demise of the subject, the end of the author, the impossib
UBC Theses and Dissertations
Why is there an international commercial uniform law rather than nothing? : a postmodern manifesto Marquis, Louis 2000
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