H-NET BOOK REVIEW
Published by H-German@h-net.msu.edu (July 2006)

Manfred Berg and Martin H. Geyer, eds. _Two Cultures of Rights: The Quest for
Inclusion and Participation in Modern America and Germany_. Cambridge:
Cambridge University Press, 2002. x + 284 pp. Index. $50.00 (cloth), ISBN
0-5217-9266-5.

Reviewed for H-German by David Abraham, School of Law, University of Miami

Rights Talk across the Seas

Untold struggles for social, legal, and political inclusion and
participation have taken place in modern Germany and America.[1] Some are
fairly similar--ethnic, racial, religious, class-based; others are specific
to each country. As the title of this volume suggests, the legal-cultural
terrain on which such struggles are fought helps shape the contours of the
struggles themselves and even affects the outcomes themselves. Editors
Manfred Berg and Martin Geyer structure the contributions of this volume,
based on a GHI conference, around the notion that there are "two cultures"
of rights, one American, one German. The volume itself offers a dozen
contributions, about a third each covering German, American, and comparative
instances. The editors broach the issue of different rights cultures in
their introduction, although only a few of the contributors go on to discuss
this matter as a conceptual or comparative issue.

There are indeed some significant differences between German and American
rights "cultures." Even if one confined one's self to the second half of the
twentieth century, it would be challenge enough to identify and discuss
these differences. Complicating matters further, however, some contributions
to this volume go back even further: Ann Taylor Allen's discussion of
feminist movements goes back to 1848, while Karl Schleunes's and portions of
Martin Geyer's essays focus on the Nazi period, whose structure of
_Volksgemeinschaft_ rights is mostly incommensurable with the larger
discussion. Likewise Roger Daniel's panoramic view of Asian Americans'
rights struggles bridges fundamentally different rights regimes.

As is often the case in discussions of this sort, the editors begin with
T.H. Marshall. The Marshallian triad of civil, political, and social rights
has developed very differently in Germany than it has in the U.S. In the
U.S., a weak social state and strong libertarian impulse hindered social
rights while strengthening civil rights; in Germany strong feudal and
socialist traditions inform a committed social state but one resting on a
shakier foundation of civil and political rights. These are important
differences, and it is worth taking a closer look at them.

Juxtaposed to America's Lockean constitutional conception of persons who are
individualistic, self-regarding, and unencumbered, Germany offers a
constitutionalism more deeply implicating community and duty and rooted in a
history that has included significant feudal and socialist impulses.[2] The
current German constitution (the "Basic Law," or _Grundgesetz_) was adopted
in 1949: in the wake of defeated Nazism, in an atmosphere of popular-front
reformism, in the midst of a then still-unresolved
American-capitalist/Soviet-communist competition for German hearts and
minds, and under the watchful eyes of both Anglo-Saxon and Gallic critics.
(West) German society benefited greatly from this particular conjuncture,
and the authors of its constitution were able to join the most serviceable
elements of their own traditions with those of the negative liberty
traditions. They created a legal analogue to the political project of the
"social market economy."

Whereas the centrality and strength of our negative liberties in the United
States testify to Americans' acute distrust of state power, the current
German constitution (like some of its predecessors) underscores the social
connections and commitments of individual citizens. As Donald Kommers, a
German constitutional specialist, has put it, "One [the American] vision is
partial to the city perceived as a private realm in which the individual is
alone, isolated, and in competition with his fellows, while the other
[current German] vision is partial to the city perceived as a public realm
where individual and community are bound together in some degree of
reciprocity. Thus, the authority of the community, _as represented by the
state_, finds a more congenial abode in German than American
constitutionalism."[3] Even a "negative liberty," such as the right to a
free press, is accompanied in the German rights system by a "positive
value," such as literacy, that is not anticipated in the American rights
regime. As Kommers again puts it, "A basic 'right' is a negative right
against the state, but this right also represents a 'value,' and as a value
it imposes an obligation on the state to insure that it becomes an integral
part of the general legal order. [For example,] the _right_ to freedom of
the press protects a newspaper against any [encroachment] of the state ...
but as an objective _value_ applicable to society as a whole, the state is
duty-bound to create the conditions that make freedom of the press both
possible and effective."[4] Among the arguments Germans use in favor of
state obligations are exactly those that a majority of the United States
Supreme Court has repeatedly rejected. German jurists frequently argue that
effectuation-like values are required precisely "to facilitate political
participation and representative government"; and they argue that the Basic
Law's welfare-state perspective "requires the state _inter alia_ to provide
subsidies to persons and groups who would not otherwise be able to exercise
their rights effectively."[5]

Thus, German legal ideology, like that of other welfare states less
committed to public/ private, state/society distinctions than the United
States, contains a strain that tends to direct governments "to compensate
for inequalities of wealth for which it was not responsible."[6] In the
overlapping area of campaign financing and free speech, for example, the
leading American cases are mired in the free speech/marketplace of ideas
discourse: in the marketplace, money, however much one has of it, talks. In
contrast, the (West) German constitutional court has invalidated the tax
deductability of campaign contributions on the grounds that they benefited
wealthy taxpayers more than others and hence worked to the advantage of the
more conservative parties.[7] More explicitly, one former President (Chief
Justice) of the German Court has gone so far as to say that the guiding
values of the German Basic Law are "equality, social justice, the welfare
state, the rule of law, and militant democracy."[8] It is difficult to
imagine such testimony at an American Supreme Court nomination hearing.

Article 20(1) of the 1949 Basic Law describes the Federal Republic as a
federal, democratic, and _social_ state. This social commitment or
_Sozialstaat-lichkeit_ adds to the formal, procedural equality of
_Rechtstaatlichkeit_ shared with the American constitutional conception: in
other words, _justice_ is commanded along with _fairness_. Equality
transcends its purely formal meaning because, unlike in the United States,
it is linked to the dual principles of human dignity and the social welfare
state. In addition, the privileging of political parties affords individuals
(as well as, obviously, interest groups), the opportunity to aggregate their
interests along shared ideological and organizational lines, thereby
somewhat mitigating disparities of income and wealth.[9]

Real autonomy, real individual freedom is seen as requiring much more than
the ultimate, market-based American virtue: _choice_.[10] The American
emphasis on individual autonomy--choice--makes collective action, whether as
a family, a neighborhood, or a trade union, much more difficult than in
Europe. Americans fear, disdain, and avoid the dependency that is
necessarily intertwined with collective action. To stop with negative
liberty, to rest content with resource-based choice by atomistic individuals
is, in the German and other social-democratic regimes, however, to
misunderstand and underestimate personhood. The German Supreme Court has
explicitly held that "[t]he concept of man in the Basic Law [Constitution]
is not that of an isolated, sovereign individual; rather, the Basic Law has
decided in favor of a relationship between individual and community in the
sense of a person's dependence on the commitment to the community, without
infringement upon a person's individual value."[11] Thus, in at least some
respects, society is prior to the individual and has legitimate claims over
him. The relationship between self and society is constitutive, not merely
instrumental. Public and private, state and society are (for better or
worse) far less bifurcated than in our own system. Such a view necessarily
rejects radical individualism, with its own attendant rejection of
duties--an individualism that characterizes not only ACLU-style liberals but
also liberal free-marketeers.

Needless to say, a system like the German one has difficulties with
_sub_-communities or multiculturalism. It is not an accident, in fact, that
the most successful welfare states have been established in countries of
great ethnic homogeneity. Further, it cannot be disputed that the
constitutionalization of values, communities, and duties can put undesirable
minorities at risk and that "programmatic discretion" (Art. 49) and a
"religious point of reference" (Art. 66) can offend the libertarian impulse
while social solidarity can demand conformity and draw sharp us/them
borders.

But "Rights Talk" has not fared well of late in either Germany or the U.S.
The Left impulse behind rights strategies, especially in the courts, has
faded, and the Right has succeeded in underscoring the indeterminacy and
malleability of rights (right to abortion vs. right to life; right to die
vs. right to live; rights of persons vs. rights of property, etc.) As Eric
Hobsbawm observed twenty years ago, wide-ranging rights claims "are not ends
in themselves, but broad aspirations which can be realized only through
complex and changing social strategies, on which they throw no specific
light."[12] Those ends turn out to be the task of mass politics. And,
indeed, for all the talk about rights and law, what almost all the
contributors to this volume really offer is a history of political struggles
for advantage undertaken by subordinate or subaltern groups in society.

The history of such sometimes-mass struggles is organized here in three
parts: one each on race and immigration, civil and social rights, and gender
and sex. The narrative strategies offered by the contributors nicely reflect
the breadth of current offerings. Thus, Roger Daniels, doyen in the field,
opens by offering a heroicist sketch of the rights denied and attained by
those people now constructed as Asian Americans. Doubly disadvantaged as
nonwhite and as unassimilable immigrants, Asian Americans used the dominant
culture of rights to struggle for inclusion. By contrast, Manfred Berg's
discussion of the NAACP's evolving voting rights strategies stresses the
dialectics and contradictions of building specifically Black political and
social power through a strategy focused on race neutral voting rights. Hasia
Diner tells a familiar tale of Jewish success in America, one centering
effectively on the availability of a peculiarly American universalist rights
talk that offered Jews the auspicious terrain of public/private and church/
state separation on which to pursue their interests. In sad juxtaposition to
that essay, Karl Schleunes underscores the commitment and alacrity of the
Nazi regime in both substituting _Volksgemeinschaft_ for the rights
structures of Weimar and negating Jewish rights and belonging so as to bring
about civil death.

Objectively assigned rights rather than rights emanating from the whole are
central today. And it is that commitment of both the German and American
legal regimes that, according to Christian Joppke's contribution, makes the
status of "alien" far less burdensome today than is often believed. Joppke
rejects most of the transnational and post-national discourse of the past
decade or two and, in my view, correctly stresses the role of liberal
structures of law and politics, especially the courts and interest-group
parties, in safeguarding and advancing the status of resident aliens in both
Germany and the United States.

Compared to its discussion of race and immigration, the book's treatment of
civil and social rights is not encouraging. Eileen Boris reminds readers
that "social citizenship" in the United States died aborning and that the
New Deal's potential commitment to equality has been transformed into the
ideology of the level playing field. Martin Geyer offers a broader and more
optimistic take on the New Deal's impact, arguing that although FDR's Second
Bill of Rights might not have brought social democracy to America, it did
spawn an international culture of "human rights" familiar to us all today.
Looking to immediate post-war Germany, Michael Hughes argues that the growth
and acceptance of "entitlements" owed much to the acceptance of
_Lastenausgleiche_, which themselves owed much to the widely-shared sense of
sympathy and victimization within the defeated _Volksgemeinschaft_. By way
of contrast, the United States since the 1960s has been suffering from a
deficit of solidarity and _Gemeinschaftlichkeit_. According to Hugh Graham's
very insightful contribution, America's culture wars, polarized divided
government, and emphasis on "difference" have undermined the social aspect
of rights in a way that has not yet afflicted Germany. This section of the
volume concludes with Margaret Dalton's thoughtful look at the new rights of
and to information, from _Datenschutz_ to intellectual property rights to
class inequalities in the so-called information age.

The final portion of the volume is led off by Ann Taylor Allen's argument
for emphasizing the similarities between German and American feminism. Allen
rejects the difference/equality dichotomy for the two countries and argues
that political contingency and opportunity operated very similarly in both
countries to mold essentially strategic choices. Finally, Michael Dreyer
makes the somewhat opposing argument that American federalism helped produce
local and grassroots gay activism, whereas the centrality of Paragraph 175
of the national penal code in Germany tended to shift activism into a
scientific and law reform discourse that was itself part of a putative
commitment to Enlightenment and respectability.

In short, the editors and contributors have brought together concerns and
empirical findings not ordinarily found in one volume. Although the quality
of the essays varies, and one misses serious legal discussion, their
consideration of rights and "rights talk" in two different legal and
political cultures is an important undertaking--particularly as we may, on
both sides of the Atlantic, be observing a considerable _Schrumpfung_ of
both rights talk and practice.

Notes

[1]. For another recent volume on this comparative theme, focusing alas
mostly on defeats, see Larry E. Jones, ed., _Crossing Boundaries: The
Exclusion and Inclusion of Minorities in Germany and the United States_ (New
York : Berghahn Books, 2001).

[2]. See Franz Neumann, _The Rule of Law_ (New York: Harper, 1986), pp.
179-285; David Abraham, _The Collapse of the Weimar Republic_, 2nd ed. (New
York : Holmes & Meier, 1986), pp. 1-41. This feudal and socialist
background
is reflected in the duties which the German constitution connects to the
ownership of property and the state's right to socialize landed and
industrial property for the sake of the commonweal. Article 14(2) of the
_Grundgesetz_ states simply: "Property imposes duties. Its use should also
serve the public weal."

[3]. Donald Kommers, "German Constitutionalism: A Prolegomenon," _Emory Law
Journal_ 40 (1991): pp. 837, 867 (emphasis added).

[4]. Ibid., p. 859 and n. 63. To be sure, within this example, it is not
entirely certain that free-speech and free-press rights through their
corresponding values mandate the provision or guarantee of some measure of
literacy. See E.W. Böckenforde, _State, Society, and Liberty_ (New York: St
Martin's, 1991), pp 175-198.

[5]. Kommers, p. 873.

[6]. David Currie, "Positive and Negative Constitutional Rights,"
_University of Chicago Law Review 53 (1986): pp. 4, 883.

[7]. The two leading German cases are, _Party Tax Deduction Cases_, 8 BVerGE
(1958) and _Party Finance Case, _ 20 BVerGE 56 (1966). In the not-unrelated
area of television broadcasting, the German high court has held that the
state must "ensure" that the diversity of existing opinions finds its
greatest possible breadth and completeness through broadcasting. _The Third
Televison [Network],_ 57 BVerGE 295 (1989). Compare the American situation,
as discussed in Stephen Gardbaum, "Broadcasting, Democracy and the Market,"
_Georgetown Law Journal_ 82 (1993): p. 373.

[8]. Wolfgang Zeidler, "Grundrechte und Grundentscheidungen der Verfassung
im Widerstreit" (53 Deutschen Juristentages 1980), p. 4; Kommers, p. 861.
Even German law is double-edged, of course, and so it should be noted that
this paramount "principle of human dignity," particularly in the aftermath
of Nazi eugenics, was cited in 1975 to strike down a liberalized abortion
statute; 39 BVerfGE 1 (1975). See Joachim Perels, _Grundrechte als Fundament
der Demokratie_ (Frankfurt: Suhrkampf, 1979) pp. 11, 40.

[9]. The virtues and vices of the so-called _Parteienstaat_ have been much
debated. For an introduction, see Michaela Richter, "The Basic Law and the
Democratic Party State: Constitutional Theory and Political Practice," in
Detlef Junker et al., eds., _Cornerstone of Democracy: The West German
'Grundgesetz' 1949-89_ (Washington: German Historical Institute, 1995). But
see Claus Offe & Helmut Wiesenthal, "Two Logics of Collective Action:
Theoretical Notes on Social Class and Organizational Form," _Political
Power & Social Theory_ 1 (1980): p. 67 (asymmetry of politics and markets
as respective arenas in which citizens and big business interests organize to
achieve core demands).

[10]. _Roe v. Wade_, probably _faute de mieux_, represents the apotheosis of
"choice." Indeed, the movement organized in defense of the principle
enunciated there has been termed the "pro-choice" movement. Of course, in
real, material terms there is generally little
"free" about the abortion choice.
And Roe itself posits autonomous, isolated women, alone and unattached to
family or community (except insofar as family and community might impinge on
the autonomy and free choice of the woman involved). There are no values
that might transcend the woman's present interests because her interest is
presumed to be private, _self_-realization.

[11]. BVerfGE 7, 15-16 (1954).

[12]. "Labour and Human Rights," _Workers: Worlds of Labor_ (New York:
Pantheon, 1984), p. 310. For more on the debate over rights and their
meaning, see: Mark Tushnet, "An Essay on Rights," _Texas Law Review_ 62
(1984): p. 1363; Morton Horwitz, "Rights," _Harvard Civil Rights-Civil
Liberties Review_ 23 (1988): p. 23; Mary Ann Glendon, _Rights Talk: The
Impoverishment of Political Discourse_ (New York: Free Press, 1991); David
Abraham, "Are Rights the Right Thing?" _Connecticut Law Review_ 25
(1993): p. 947.




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