On Cultural Confrontation

Is law deemed to be Americanized truly distinct from law thought of as Europeanized, or are they two versions of the same thing?

By George A. Bermann

Summer 2009

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In an academically cosmopolitan age, terms like the Americanization or Europeanization of law have a worryingly reductionist ring. But I nevertheless want to explore the meaning of these two notions and their interrelation, not least because Europe and the United States consciously aspire to exert legal influence throughout the world—an enterprise in which they are being joined by other polities, notably China.

What does this cultural confrontation consist of, and why does it matter? A simple form of the question might be: “Is law that is Americanized somehow 
distinctive from law that is 

Some recurring themes in American law do emerge: (a) faith in the value of continent-wide legal integration; (b) deep attachment to the nation as opposed to the international community as the unit for identifying and solving problems through law; (c) tolerance for judicial lawmaking, whether in fashioning a common law or in addressing essentially 
political problems; (d) a view of government more as defender of civil and political freedoms than as guarantor of social welfare; (e) greater commitment to equality of social and economic opportunity than to equity of social and economic results; (f) reliance on market mechanisms for social and economic regulation, coupled with an insistence on proof of market failure to justify regulation; (g) a cost-benefit–driven approach to legislation and regulation, with mistrust of “nonscientific” precautionary principles regarding social risks; (h) reliance on litigation and liability as instruments for ensuring individual and corporate accountability; (i) attachment to fault-based principles in the law of civil liability; and (j) individualism and party 
autonomy in the administration of civil justice. European law projects a different profile.

But there is another set of ways to frame the cultural confrontation, and that is in attitudes toward law’s performance of its core function, namely 
enabling a polity to self-govern. How do we govern ourselves through law? What determines law’s agenda? What governance outcomes tend to prevail?

How We Govern Ourselves
Disregarding differences in detail, Europe and the United States offer up a largely shared liberal democratic model of governance: decision-making institutions of a strong democratic and representative pedigree; a vibrant civil society supported by free and effective channels of public communication; social and economic space in which individual enterprise can flourish; and an independent judiciary ensuring the safeguard of certain core “constitutional” values. Circumstances around us all point to a general synonymy between American and European law in all of these respects.

What Determines 
Law’s Agenda?
That Americanization and Europeanization of law rest on largely common governance premises does not tell the whole story. To what extent, we may ask, do today’s legal agendas (i.e., the inventory of issues brought for authoritative public resolution) reveal forces and movements with roots in American or European political, economic, and social fabric? If developments within the American sphere prove to be overwhelmingly determinative of the agenda, that alone would represent “Americanization” of law in an important sense.

The tableau here includes the commercialization of genetically modified foods; mandatory disclosure of new categories of corporate and accounting 
information; extraterritorial application of domestic law; the admissibility of capital punishment; and legal limitations on measures to combat terrorism. These examples reveal that the United States—and, more particularly, its economic and political features—still plays a preponderant role in shaping the content of legal agendas in both Europe and the United States, and indeed elsewhere.

Interestingly, when we examine the issues that social—as distinct from economic or political—
developments have thrust on legal agendas, it seems far less clear that American developments are principally responsible for their emergence. In other words, the currents of social, as distinct from economic or political, change seem to flow in a much more complex set of directions. I doubt that the impetus for some of the key issues on domestic legal agendas—legal recognition of gay marriages or same-sex civil unions, decriminalization of euthanasia, legalization of various recreational drugs, heightened levels of consumer and environmental protection—can truly be said to have its preponderant source in American as opposed to European society. This is not so strange, for there may simply be a weaker correlation between power and the impetus for social change, on the one hand, than between power and economic and political influence, on the other.

Governance Outcomes Themselves
This brings me to the third aspect of Americanization and Europeanization, namely governance outcomes themselves. The point is that law is reflected not only in the constellation of issues that political, economic, and social changes toss onto the legal agenda, but also in the outcomes of the problem-solving exercises that follow. Since domestic American and European law outcomes will more or less reflect dominant value preferences 
in the United States and Europe, 
respectively, it is instructive to look at patterns of influence elsewhere, namely international fora and decisional sites in other countries. Within that theater, are Europe and the United States best viewed as collaborators on a stage or competitors within an arena? And are law and legal development encouraging the ascendancy of one or the other vision?

Were we to try systematically to gauge the resonance that the characteristic “American” positions and claims set out earlier in this essay are enjoying in this theater, we would find that attitudes and solutions characteristic of American law do not have an influence commensurate with the preponderance of the United States in producing the original legal problem-solving agenda.

Again accepting my characterization of American law, it remains to consider whether “Europeanization” of law offers a robust alternative or merely a more “civilized” version of the same. As to this, I remain cautiously optimistic that Europeanization offers more the former than the latter. Whether this turns out to be so may depend not only on the intrinsic superiority of Europe’s legal solutions (if indeed they are superior), but also on whether Europe can leverage the culture of tolerance and mutual accommodation that informs much of law at the European Union level into an influence and an advantage on the world stage.

This essay was reprinted from the recently published Sesquicentennial Essays of the Faculty of Columbia Law School. © 2008 George A. Bermann

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Illustration by David Plunkert