In “Pierre Menard, author of the Quixote”, first published in 1939, Jorge Luis Borges evokes the imaginary contribution of a French author from the first half of the twentieth century, Pierre Menard, whose known output is completed in a fundamental way by the reproduction of chapters 9 and 38 of Part I of Don Quixote, as well as a fragment of chapter 22. What Menard would have done is not recopying of the original text, nor the production of a sequel or prequel, nor the adaptation of the story to a different context, but rather follow a process whereby he sought to arrive at exactly the same text as produced by Cervantes three hundred years earlier. Borges describes seeing piles of drafts written by Menard, slowly crafting the text that eventually became identical to parts of the Quixote. The suggestion carried by the short story is that it is conceivable that two authors which many things separate – their language, their culture, the political context, the literary tradition – can arrive at an identical text through intellectual processes which are radically different. When this idea is appropriated to consider the authority and origins of basic humanitarian norms like the Geneva Convention or, even more forcefully, the Universal Declaration of Human Rights, we can imagine an explanation of the universal appeal of the text that leaves asides arguments centred on its origins. In the case of the Universal Declaration, cultural relativist arguments often include tracing the origins of the document to European Enlightenment ideas translated into the French Déclaration des droits de l’homme et du citoyen as well as the Unites States Bill of Rights; the same also decries the absence of much of the developing world from the political process which lead to the adoption of the Universal Declaration in 1948, subsumed as it then was in the colonial empires of a few powerful states. And yet, many counter-claims underscore the existence of principles in non-Western settings which are similar to those entrenched in the Declaration. This is the main message conveyed by the limited literature on principles of humanitarian law in exotic, non-Western cultures. What “Pierre Menard, author of the Quixote” offers is a creative and provocative suggestion that it is entirely conceivable that we may arrive at an identical text from intellectual processes divorced from one another, under the influence of divergent ideas. The result is to render moot the question of origins, including the suggestion of transplant, to replace it by a different quest to determine whether it is possible that this document might be the outcome of parallel and distinct evolutionary processes in different parts of the world. Borges uses the Quixote as the vehicle to advance the idea, but there seems nothing specific about the written form which would preclude the same from obtaining for unwritten ideas, principles, or norms. As such, the legitimacy of an international norm would not be exclusively tied to a single narrative, but rather be opened to multiple narratives linking the same norm to multiple sources.
There is more still to “Pierre Menard, author of the Quixote”. The text at which Menard painstakingly arrives after years of work is identical to that of Cervantes, and yet radically different. In the short story, Borges quotes a passage from Cervantes in which the Spaniard evokes “truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and adviser to the present, and the future’s counsellor”, to be taken as an instance of rhetorical praise of history. Borges then quotes the same passage from Menard, identical in every detail, but which is to be accorded a completely different meaning given the context in which Menard – as opposed to Cervantes – came to write these lines, amidst a movement to reject essentialist readings of history. The point is, of course, the necessary contingency of interpretation of any text, but coloured this time by the suggestion that the contingent nature of text is reflective not only of the process of interpretation but also its very production. Seen in this light, there can be no debate about originalism in the interpretation of documents like the Universal Declaration or the US Constitution, because a single text can be borne out of different lineages. “Every man should be capable of all ideas”, Pierre Menard is quoted as having written, and indeed this is the challenge posed by legal pluralism to the existence and validity of any legal norm. Even if we have instruments like the Geneva Conventions and the Universal Declaration of Human Rights which have attracted adherence from nearly every government, this does not foreclose the possibility that the norms they contain may be arrived independently at by other agents. In seeing every class of legal actor we seek to regulate as the potential co-author of legal norms, we move beyond the notion of normative commitment articulated by Robert Cover to a more creative and polycentric process whereby norms are created and recreated at every invocation. This seems to resonate as particularly true in the context of warfare, in which the state and its institutions are partly unable to reach the very actors we wish bound by international humanitarian law. Each actor, from the armed forces to rebel groups and even individuals, must make a determination to live by a given norm in order to give it salience. There is no guarantee that these multiple authors will, like Pierre Menard and Cervantes, arrive at fully identical formulations. Even if they do, the meaning to be given to these will not necessarily be consistent. The result is legal polyphony, a global commons in which narratives about humanitarian standards interact to give shape to a legal regime far more complex but far more meaningful than the written text of the Geneva Conventions.