Vol. 14 No.11 (November 2004), pp.867-869

AFTER NATIONAL DEMOCRACY: RIGHTS, LAW AND POWER IN AMERICA AND THE NEW EUROPE, by Lars Trägårdh (ed). Oxford, England: Hart Publishing, 2004. 196pp. Paperback. £25.00 / $50.00. ISBN: 1-84113-329-9.  Hardback. £45.00 / $90.00. ISBN: 1-84113-328-0

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida. Email: handberg@mail.ucf.edu.

American courts, with their power of judicial review (constitutional review in Europe) in addition to an emphasis upon protecting individual rights, have long held a fascination for European legal observers. Both sides have moved beyond their simplistic notions of how courts operate in Europe and the United States, and scholars are beginning to pose the question of whether an American style rights policy might not be advantageous for Europe now embodied in the European Union (EU). This edited volume provides several different looks at American historical experience with its courts – highlighting the perceived positive effects and also the downside, at least from a European perspective.

For Europeans, courts in their American modality constitute a direct attack upon parliamentary democracy by placing the legal branch in the position of denying parliament free exercise of its powers. Historically, democracy in Europe occurs through collective action with less emphasis upon individual liberties and rights. However, the rise of the European Union to its central place in the politics of Europe has cast doubt on that earlier approach’s efficacy as the European Court of Justice (ECJ) pushes individual states to bring their statutes into line with ECJ decisions. In effect, parliamentary authority is severely compromised by this external agent, a non-elected body on top of that. The entire book is marinated in the debate over the “democratic deficit” that hovers over the EU – the search is for devices by which that deficit might be reduced, since the European Parliament remains clearly subordinate to the Commission itself that runs the EU. Protecting human rights, it is argued, provides that sense of legitimacy and support necessary for overcoming barriers of language, religion and ethnicity.

Protecting individuals becomes particularly important as Europe lurches toward a transnational market economy, while states concurrently restructure or reduce the welfare state that was characteristic of European nations, a critical part of their social contract. Now, individuals perceive themselves as free actors whose right to choose overrides the boundaries of the state – maximization of personal rewards replaces the collectivity that formerly dominated European politics. Richard Bellamy and Dario Castiglione argue that the crisis at hand in the EU is one of legitimacy as national states transform from completely sovereign entities to increasingly subordinate parts of the EU. What becomes lost is any sense of accountability between citizen and state because Europeans historically have focused their allegiance upon the [*868] sovereign nation state. What results is a more fragile political system (the EU) than appears on the surface. The EU has not yet acquired legitimacy, while its actions continually undermine member states.

For judicial scholars, the chapters that follow are particularly interesting for their comparative view of American courts and their development. Lars Trägårdh and Michael X. Delli Carpini explore the anti-juridical tradition of Europe in comparison to the historical growth of American constitutionalism. In the latter case, they find the American system driven by a sense of adversarial legalism with a focus on individual rights. This allows individuals to defend themselves against intrusion by the state and other neighbors. From this perspective, the Americans with Disabilities Act becomes an important symbol of that individual equality and ability to influence both private and public actors. Equivalent European movements, from this perspective, are seen as facilitating a new version of what it means to be a European citizen. This is particularly important as the number of immigrants grows across the continent, breaking down barriers in somewhat insular societies.

Other chapters focus on the rights question in the context of European and American legal history. What is happening is the gradual specification of a substantive set of rights to be enforced primarily by the courts. The effect of this rights revolution is to bring European courts, especially at the constitutional level, more fully into the political process. This occurs because enforcement requires governments and other political actors to acknowledge the importance of such rights even when it is awkward for the government to do so. A rights-based legal system places constraints upon what is deemed possible. These chapters were written prior to the finalization of the new EU constitution, but their content heralds part of what influenced those deliberations. With the growth of individual rights in the context of a market economy, the sovereign states constituting the EU find themselves increasingly at odds with the EU and their own citizens who now have recourse to remedies outside the government’s control. Those states are being squeezed from above and below, but the forces in motion appear too strong to derail, although individual states may delay or temper what is occurring. The German Constitutional Court has been at the forefront of such struggles.

The old divisions between common and civil law legal systems appear to be breaking down in response to these changes in the political and economic spheres with significant implications for the social. In Europe, a hybrid civil law system is being constructed that maintains the old civil law structure and format but overlaid by an appellate process increasingly more sensitive to questions formerly thought peculiarly American—the political question doctrine. There is not a merger of the two but rather a borrowing across national boundaries. The American experience in amalgamating diverse cultures and economics into a single state may prove useful for Europeans confronting a similar situation. That experience however is not one of immediate or easy success—a Civil War was part of the American process. For [*869] legal scholars, this volume presents interesting and thoughtful insights into the process of state building in relation to protecting the individual against the Leviathan through use of the “least dangerous branch,” the courts, a concept foreign to Europe.

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© Copyright 2004 by the author, Roger Handberg.