The Metamorphoses of Responsibility and the Social Contract

Pierre CALAME, juillet 2021

The book ‘The Metamorphoses of Responsibility and the Social Contract’ (edited in 2020) describes the indispensable metamorphosis of responsibility in the twenty-first century. It is the outcome of collective work that has spanned three decades, with the constant support of the Charles Léopold Mayer Foundation for the Progress of Humankind, FPH.

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Foreword to ‘The Metamorphoses of Responsibility and the Social Contract’ (edited in 2020)

by Mireille Delmas-Marty, Professor Emeritus at the Collège de France

On the scale of the current globalization, do the concepts of responsibility and solidarity still mean anything? In other words, will we succeed in moving from our societies of ‘unlimited irresponsibility’ to a world of extended responsibility as defined in the Universal Declaration of Human Responsibilities? Pierre Calame proposes to answer these difficult questions in his latest book. With rare optimism, he boldly gambles that an ethical and legal response is possible and that the law can resist the development of competing and autonomous normativities, particularly economic or digital ones, under certain conditions.

This book is the result of a long maturation process. In late 1993, at the outcome of an international dialogue conducted in all the continents, a group of French-speaking intellectuals, the Vézelay Group, published a ‘Platform for a Responsible and United World’, which would give birth to the ‘Alliance for a Responsible and United World’ and now substantially sustains the three parts of the book we are presenting below.

I - The first part shows that responsibility has emerged as ‘the backbone of twenty-first-century ethics’. It is both a ‘universal principle’ ‘found in every culture’ and a response to the new nature of global interdependences. The author is wary of the notion of limited liability/responsibility companies, stating that the sum of limited responsibility actually gives rise to ‘societies with unlimited irresponsibility’. Considering that the Universal Declaration of Human Rights does not take account of the new interdependences, he mentions various attempts to draw up and adopt an Earth Charter and an initial Charter of Human Responsibilities, and situates his project within a broad range of initiatives.

Calame recalls in particular the initiative that we had launched in 2002 and then resumed in 2005, under the International Ethical, Scientific and Political Collegium, with Michel Rocard, Milan Kučan, Stéphane Hessel, Edgar Morin and Sacha Goldman, as well as a number of distinguished figures from the political and academic world. The initiative, a Universal Declaration of Interdependence project, was reactivated in 2018 with the participation of Jacques Toubon and Pascal Lamy. By declaring their mutual interdependence, states would not be giving up their sovereignty, they would simply be recognizing that solitary sovereignty (‘a man’s home is his castle’ was the basis of the Nazis’ opposition to the League of Nations) must become sovereignty in solidarity, extended to every country’s contribution to protecting our global common good and to building humankind’s common destiny. It is a fact that no state, however powerful, can tackle the global challenges alone, be they social crises or climate change, but also global terrorism, financial crises or migration. In short, by acknowledging their interdependence, states would only be acknowledging reality, as in truth, claiming to go it alone is tantamount to denying reality.

Also mentioning the project for a declaration of humankind’s rights led by Corinne Lepage (2015) and the proposal for a third Global Pact for the Environment presented by a group of experts from civil society supported in particular by Laurent Fabius (2017), Pierre Calame ultimately drew inspiration from the research conducted at the Collège de France to ‘take responsibility seriously’ and to move towards a ‘universally applicable jus commune’. In doing so, he testifies to the fecundity of these ideas, converging on the essential theme of responsibility at the global level. No matter that good governance and the science of law are intertwined, in turn as the primary reference; whereas we consider good governance to be part of the jus commune, Calame, privileging governance, considers the science of law as a simple component of good governance. What is important is to show that responsibility is at the core of global ethics.

From this point of view, the approach here, based on the theses discussed at the World Citizens Assembly in 2001, is highly ambitious because the goal is to add to the UN Charter and the UDHR a third pillar, which would be, precisely, the Universal Declaration of Human Responsibilities. The proposal, part of a long-term process – the research has been going on for some thirty years – is concrete, precise and constructive. The author endeavours to make explicit six dimensions, or conditions, of responsibility, whether ethical or legal. Here we shall focus on one of these conditions, consisting in extending responsibility from several perspectives: assuming all the consequences, direct and indirect, of our actions; uniting to overcome helplessness; and recognizing that our responsibility is proportionate to the knowledge and power of each. The idea is to call into question the definition of each actor’s responsibility as circumscribed in time and space, which inevitably leads to our societies’ ‘unlimited irresponsibility’.

No matter how strong the argument, one hesitates to share a theory that leaves no room for the human finiteness evoked by Paul Ricœur when he suggested reconciling the two types of responsibility: ‘the short view of responsibility limited to foreseeable effects and the long version of an unlimited responsibility.’ Our cognitive abilities do not, in fact, allow us to make long-term predictions on all the consequences of all our behaviour. Although scientific work is increasingly shedding light on these consequences, as for instance in the IPCC scenarios on climate change, unpredictability has not for all that disappeared and human responsibility, even to future generations, cannot be infinite. With this reservation in mind, we will gladly follow the author into the second part of his book.

II - The second part sets out human responsibilities as an extension of eight common principles (of governance and law) at the global level. These are sometimes technical principles – such as no statutory limitations for the responsibility of an action where the subsequent damage is irreversible – and sometimes substantial, founding and innovative principles – such as the principle that possession or enjoyment of a natural resource induces the responsibility to manage the resource in the best interests of the common good. Referring to recent developments in jurisprudence and law, both national and international, the author shows how, thanks to the activism of civil-society organizations, judges and legislators, based on these principles, are gradually extending the definition of responsibility. The author describes this metamorphosis as a true ‘Copernican revolution’, shifting what was central to the margins and what had hitherto been marginal to the centre. He even compares the Universal Declaration of Human Responsibilities to a ‘World Constitution’ on which to base common law informed by different legal traditions and complying with the fundamental principles of governance.

Though the author does not explicitly mention the ‘cross-fertilization of knowledge’ method, the book nevertheless contains the idea behind this expression, which was coined by the ATD Fourth World movement in the 1980s, which is that whilst public authorities (legislative, executive and judicial) are increasingly merging at the global and sometimes even national scale, the counter-powers are coming from outside, from civil society, especially from citizen participation, as well as from a greater role of scientists. In this sense, Calame’s book is in line with what I have otherwise called ‘governance SVP’ (for Savoir Vouloir et Pouvoir, or Knowledge Will and Power).

On the power side, to the political power of states he adds the economic power of large corporations. This is even more evident at the global scale than at the national scale. Transnational corporations are actual players on the international scene, even if traditionally they are not viewed as subjects of international law. They are becoming de facto players in almost every area, and even de jure players in some areas such as investment law. So a sort of recomposition is taking place towards a new (democratic?) balance at the scale of the world, or of a region like Europe.

We will only add that that there is also very significant cross-fertilization within the other categories, knowledge and will. There is not only the knowledge of scientists and scholars. There is also the knowledge of those who are sometimes called the ‘knowers’, i.e. those who have the experience. It is by crossing scientists and scholars with knowers that we are most likely to advance knowledge. There are striking examples of this in the environmental field. The key role in climate change is played by climatologists, but indigenous peoples have also been found to have knowledge and insights derived from their ancestral experience. The knowledge of indigenous peoples must be cross-referenced with the knowledge of scientists in order to provide new answers to current environmental problems. The same is true in other areas. With regard to poverty, particularly when it is inherited, the relevant criteria for combating it are determined by lawyers, sociologists or psychologists, whilst people’s experience of extreme poverty invalidates the knowledge of those who have not themselves lived in poverty.

Other intersections can be observed in what is being desired, further complicating decision making. The citizens’ will can be expressed at the level of an individual isolated in his or her village, city, country or region such as Europe, or at the level of a citizen of the world. These mingle with each other. Similarly, political powers are not only central powers, governments and Legislators with a capital L, but also territorial powers. In the field of climate, which is a kind of laboratory for globalization in other fields (we are thinking in particular of migration), local and regional authorities play a major role, whether they are big cities that have networked or a federal state like California that has taken a lead. As for economic power, it is already highly differentiated from one society to another, from one sector to another. Such a panorama is interesting to evoke here, as it explains the difficulties of political decision making in a world completely turned upside down, where the challenges are global whilst decisions are taken at the national level or, at best, at several levels. This points to the interest of the third part of the book, which recognizes that the new governance is deployed at multiple levels and through multiple actors. Hence the importance, again, of the economic actors, presented at length, even before the political actors, in the third part.

III - The third part is organized around the idea of a new social contract, because ‘responsibility and belonging to a community are two sides of the same coin’. This leads the author to examine a few examples illustrating the existence of such a social contract and to outline the main lines of its renewal, which he imagines in the form of ‘Charters of Societal Responsibilities’, which he illustrates in areas such as scientific research and higher education, or the business or political worlds.

Although I have reservations about the idea of such a contract at the global scale because the contract would be both multidimensional and total, and be at risk of drifting towards generalized totalitarianism, some warning signs of which we are already perceiving, I willingly follow Calame when he addresses very concretely current debates such as that on CSR (Corporate Social Responsibility), a key element in managerial discourse. Even if we consider that the ‘neoliberal social contract’ making the enrichment of shareholders the ‘be all and end all’ of a company has largely been defeated, we must agree with the author that we are still very far from a true Charter of Societal Responsibilities, which should encompass not only companies, in the legal sense of the term, but the whole of global production and distribution channels, subsidiaries and subcontractors. This could be achieved, he says, through a combination of collective commitments and reform of the international rules governing economic life. What remains is what he calls the paradox of current finance, which is to have replaced the relationship of trust between borrower and lender – implying that savings will be transformed into long-term investment – with myriads of instantaneous transactions. Hence his criticism of the discourse on socially responsible investment, which has invaded the public arena but is still only marginally changing the reality of relations between the various players in finance and the rest of society. Such observations lead us to propose the co-responsibility of actors, logically including political actors. The responsibility of governments to their constituents seems obvious to him, even if it remains very limited in the long term and towards the planet as a whole. Calame concludes that today’s fall-back on sovereignism and nationalism, like the tyranny of the short term, are taking rulers even further away from the extended definition of their responsibility in an interdependent world faced with the need for a far-reaching transition. This is why he advocates general principles to redefine the responsibility of governments.

In conclusion, it is to be welcomed that civil society, through the voice of the former President of the Charles Léopold Mayer Foundation, is so resolutely committed to the steep technical and philosophical paths of global responsibility. He is not fooled by sterile oppositions such as the binary opposition between ‘soft law’ and ‘hard law’, two terms not to be confused with the strengths and weakness of legal systems. Though it can seem weaker, a simple declaration or recommendation can have a more lasting and powerful impact than a precise, mandatory and sanctioned arrangement. Similarly, he recognizes that in line with current developments, the boundaries between national and international law are becoming blurred and may even disappear. Of course we are probably moving towards more standards, but not all standards are legal. And the production of standards is not enough to make the main players accountable. The role of the law in relation to the digital or economic world should be strengthened. The institution of an impartial and independent third party – whether called a ‘judge’ or otherwise – is one of the conditions for differentiating the legal from the non-legal norm.

It follows that jurists must support such initiatives. This book reminds us that, although human societies remain largely unpredictable, our duty as human beings endowed with conscience and reason (Art. 1, UDHR) is to behave not as owners holding all rights including the right to destroy common goods, but as responsible beings whose duty is to ensure that the Earth – our common good – remains habitable.

In short, the message of this book is simple: like the Little Prince responsible for his rose, each of us, in proportion to our knowledge and power, is responsible for our common home.

Notes:

1. Jacques Toubon is French Defender of Rights, and Pascal Lamy is former Director-General of the World Trade Organization.

2. A. Supiot and M. Delmas-Marty (eds.), Prendre la responsabilité au sérieux, Paris: PUF, 2014; M. Delmas-Marty, K. Martin-Chenut and C. Perruso (eds.), Sur les chemins d’un Jus commune universalisable, Paris: Mare & Marin, forthcoming.

3. P. Ricœur, Le Juste I, Paris: Revue Esprit, 2001.

4. M. Delmas-Marty, La Refondation des pouvoirs, in Les Forces imaginantes du droit, Tome 3, Paris: Seuil, 2007, p. 258; M. Delmas-Marty and J. Tricot, ‘L’art de la gouvernance’, in Sur les chemins d’un Jus commune universalisable, op. cit.

5. On the generalization of warning signs of totalitarianism, see La Refondation des pouvoirs, op. cit., p. 258.

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