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Posts tagged ‘Europe’

My take on the German Question

Photo credit: Wolfram Huke at http://wolframhuke.de

Photo credit: Wolfram Huke at http://wolframhuke.de

Jürgen Habermas, Germany’s best-known living philosopher, sees a “historical failure of the political elites in Germany” because in the current election campaign they talk about every possible banality except the big questions for Europe and Germany.

Actually, those questions are only a new form of a centuries-old bundle of geo-strategic dilemmas called “the German Question”. I wrote an essay about that Question for Juncture, the journal of a British think tank called IPPR, the Institute for Public Policy Research.

Here is the full essay, which they have kindly allowed me to reblog below.

Also, as some of you have already noticed, I am currently keeping a “German Election Diary” on our Charlemagne blog at The Economist. That’s in addition to my “regular” coverage in the magazine. Stop by if you’re interested.

The dilemma at the heart of Europe: Germany and the German question

Andreas Kluth is Berlin bureau chief for the Economist.

03 Sep 2013

Andreas Kluth highlights the issue that has been conspicuous by its absence from Germany’s parliamentary campaign: the relationship between Europe and the economic powerhouse that is too small to lead, too large simply to fall into line.

The biggest surprise about Germany’s parliamentary election – the results of which are not yet known as I write – is what has not been discussed. The omission is glaring, and it raises fundamental questions about the future not only of Germany but of all Europe.

Let us begin with a very partial list of what was debated, in some cases ad nauseam. Whether or how much the Americans spy on Germans. Whether mothers should use subsidised childcare or keep their toddlers at home. Whether Germans should be discouraged from eating meat on Thursdays. To what extent paedophiles once held sway in the Green party; whether foreigners driving on German motorways should pay toll; whether mothers should get higher pensions. And always, always, that German evergreen: whether the rich are too rich and should forfeit part of their wealth (not just their income) in the name of ‘social justice’.

These matters become campaign issues because they are easy to have opinions about. In some cases (spying), they tap into peculiarly German phobias about the invasion of privacy and endemic strains of anti-Americanism. In other cases (childcare), they mobilise reliable legions from old culture wars. Some (meat on Thursdays) reflect the Germanic tendency, best embodied in the Green party, to mix do-goodiness with school-masterly paternalism. And an entire bloc of issues (‘social justice’) is based on a perennial obsession, one that the Teutons share with the Puritans, which was best defined by the late American journalist HL Mencken as ‘the haunting fear that someone, somewhere is having a good time’. (The nuance, by the way, is that Teutons worry about other people having money, Puritans about other people having sex.)

So what was not discussed? In a phrase: the German question. This is not in fact one question but a complex of geostrategic dilemmas that have haunted Europe for centuries. For decades, until reunification, the German question was considered temporarily solved, or at least no longer pressing. But now it is back, rephrased by what is called the ‘euro crisis’. It is a question that the eurozone – and really the entire EU – must answer. In this election campaign, then, one would have expected Germany’s politicians, above all chancellor Angela Merkel and her challenger Peer Steinbrück, at least to begin grappling with it. They did not.

The question, over the centuries, has always had two premises. The first is Germany’s geographical centrality. Even today, Germany has more neighbours than any other country in the EU. The second is Germany’s ‘awkward scale’, as Kurt Georg Kiesinger, then chancellor of West Germany, called it in 1967. It is neither huge like America nor tiny like Belgium. It is too small either to dominate (‘lead’) Europe outright or to exist independently in a world of US, India and China-sized powers. At the same time, it is too big simply to ‘get in line’, as just another member of the system. Thus Germany may have one vote, equal to Malta’s, on the governing council of the European Central Bank. But as supplier of almost 20 per cent of the ECB’s capital, its interests and sway cannot be considered equal to Malta’s (providing less than 1 per cent of the bank’s capital).

Henry Kissinger once phrased this dilemma as ‘too big for Europe, too small for the world’. Thomas Mann, Germany’s greatest modern writer, expressed essentially the same idea in a famous speech in 1953 as a tension between ‘a German Europe’ or ‘a European Germany’. As the eurozone now decides whether to submit to ‘German’ rules about fiscal and economic management, and as the EU as a whole decides where its political centre of gravity should sit, they are all in effect asking the same timeless question over and over again.

During the Holy Roman empire of the German nation, the question was about whether the vast area in the middle of Europe would centralise and dominate the continent or stay fragmented and destabilise it (as during the Thirty Years war). After Napoleon dismantled that empire, the question became how these German lands would unite: as a ‘greater Germany’ with Austria or a ‘lesser’ one with Prussia but without Austria. Bismarck supplied his answer and Europe responded by trying to balance German power with other alliances. This approach led to the first world war. Afterwards, Europe tried to answer the question by keeping Germany down. Indirectly, this led to the second world war.

After that war, the world – as by now the US was involved – gave not one but two answers. First, the whole world was to be split, and the split was to run through Germany, so that it was no longer at the centre of anything but rather at the edges of something, each of its halves being submerged into one of the two global camps. Second, within western Europe, West Germany voluntarily tried to make the question irrelevant by becoming just another member of an ‘ever-closer union’, now called the EU. As part of that deal, Germany explicitly ceded political primacy to France and military power altogether, no matter its economic might.

The first part of that double answer became obsolete when the Berlin Wall fell in 1989 and German unification the following year undermined the second part. France, in particular, pushed for a reinforcing of Germany’s integration-cum-subservience in the EU by making Germany give up the Deutsche mark, which president François Mitterand once called Germany’s ‘nuclear weapon’. Yes, the successor currency’s central bank would be located in Frankfurt to assuage the Germans. But ‘Frankfurt’ also sounded reassuringly like ‘franc fort’. The ultimate point was – staying with Thomas Mann – to keep Germany, and in this case its money, European. As Timothy Garton Ash at Oxford University has put it: ‘European monetary union forged during and after German unification was not a German project to dominate Europe but a European project to constrain Germany.’

It is therefore ironic that this same monetary union has, from the point of view of the Greeks or Cypriots or Portuguese, led instead to a Europe made German. Only this feeling can explain the posters of Angela Merkel defaced with Hitler moustaches and swastikas that accompany the distressed and angry citizens of the crisis countries when they take to the streets. It is the iconography of a belief that Germany has in fact become a hegemon over the eurozone. In the protesters’ minds, ‘austerity’ – budget cuts to reduce indebtedness – and simultaneous reforms to make their labour and product markets more competitive within Europe and in the world are ‘German’ rules, imposed by Mrs Merkel.

From the German point of view, however, the same crisis looks very different. Leave aside for the moment the question of whether austerity is actually effective as policy and whether reforms are politically feasible in this climate. What Germans see is their chancellor failing to impose her will on Europe, that she is at best slowing down the process of pledging more German money to rescues (despite a ‘no bail out clause’ in the EU treaties that every German seems to know about), paying at best lip-service to new rules (such as the ‘fiscal compact’). The Germans do not blame Merkel for this, for they suspect that any chancellor from the opposition parties would have done more of the same, and faster. But Germans see no evidence that they are dominating anybody. Meanwhile, they do see evidence – the Hitler moustaches on Merkel posters and all that – that they are being blamed as if they were.

This situation both irritates and scares Germans. They see that the euro situation is causing old resentments to resurface, and that many of those resentments are directed against Germany. As Dominik Geppert, a historian in Bonn, argues, they also observe ‘another disagreeable relic of the past: more and more often Germany’s representatives in negotiations at a European level find themselves isolated’. Is this another Sonderweg?

Reared on the lesson that Germany must never again try to be a ‘leader’ (the word is Führer), the German elite is now hearing calls to become just that. ‘I fear German power less than I am beginning to fear German inactivity,’ the Polish foreign minister Radoslaw Sikorski said in 2011. Soon after that speech, the debate started within German academia, when Christoph Schönberger at the University of Constance called for Germany to drop its provincial mindset and become a ‘hegemon against its will’.

A hegemon, as defined by the late economic historian Charles Kindleberger and others, is a country that has military, political and economic power, but chooses to use its power not to dominate other countries but to preserve the existing system, even against its own short-term interest, for instance by acting as lender of last resort. Britain during the years of the gold standard comes to mind, or the US more recently. America’s refusal to become a hegemon sooner, Kindleberger thought, actually made the Great Depression so long and bad.

Right away, this makes the case for German hegemony problematic. After the second world war, Germany explicitly forswore military and political power. It does have economic power, which it could in theory use to be lender of last resort in the euro crisis. But for the time being, the ECB has stepped into that role.

This points to a particular problem with hegemonic theory in this instance, as Werner Link at the University of Cologne has pointed out. The ECB (like the ESM and all the other acronymised EU-spawned institutions) exists precisely because the system to be preserved – the euro and the EU – was designed so that nobody could ever be a hegemon over it – not Germany, nor France nor Britain, nor any combination of them. Under the EU’s horridly complicated voting rules, a decision requires at least 55 per cent of the member states (15 countries) provided these states represent at least 65 per cent of the EU population. The EU’s other bodies, such as the ECB, have similar decision-making rules in place. The whole point is that no single country can dominate.

In this context, then, calls for German hegemony in the current systems amount to demands for German money without any other form of German influence – euros without strings. This is what Germans fear: another ‘transfer union’. They already have two transfer unions at home, and like neither. The first is the German system of equalising revenues among the 16 federal states, so that strong Bavaria, say, gives money to weak Berlin. The second is a solidarity tax that all Germans have been paying since reunification (due to end in 2019) to send money to eastern Germany. They’d rather not add a third layer for the eurozone.

Geppert argues that the resulting ‘semi-hegemony’ is in fact the real German dilemma. Germany is damned if it does and damned if it doesn’t. If it does insist that recipients of rescue funds observe certain economic rules then it will earn enmity for its ‘neo-imperialism’. If Germany instead opens its purse (through debt mutualisation or eurobonds, say) then its own voters, and probably courts, will eventually balk. ‘Maastricht’ could one day have the ring of ‘Versailles’, ventures Geppert. Regardless, both scenarios are bad for Europe.

These views are, admittedly, rather pessimistic. Germany and Europe are capable of finding a better course. But the point is that they must begin to talk about how to do this – and all the political parties in Germany during this campaign have done their best to talk about anything else instead. Jürgen Habermas, Germany’s best-known philosopher today, calls this a ‘historical failure of the political elites in Germany’. He believes that these debates would be ‘unavoidably polarising’. That they did not occur in Germany in 2013 is a shame.

This article appears in issue 20(2) of Juncture, due out shortly.

A tale of two cases: Dumas vs Sipple

Alexandre Dumas pere

I promised in the previous post to follow with two examples of the fascinating differences in American and European law (not to mention culture) when it comes to privacy and its component values, such as liberty, dignity, and honor.

Of the many cases in James Q Whitman’s excellent research into those two traditions, these two caught my attention:

  1. The 1867 case of Alexandre Dumas pere, which expresses perfectly the French (and thus continental European) philosophy on the matter of privacy, and
  2. the case of Oliver Sipple, a gay man who saved President Gerald Ford’s life in an assassination attempt in 1976, which expresses the American philosophy

1) Dumas

Alexandre Dumas père was the author of The Count of Monte Cristo and The Three Musketeers and other books. In his sixties, he had a steamy affair (as one did) with an actress and horsewoman from Texas who was almost half his age and (in)famous for mounting stages scantily clad by the standards of the time.

Dumas and his lover posed for several risqué photos. Nobody on Facebook today would bat an eyelid, but the babe was in her underwear, and even the old man was in states of relative undress. Dumas sold the rights to those photos to the photographer, as he later admitted in court. The photographer then published some of these photos.

Dumas, probably thinking of his musketeers who would have demanded a duel on the spot, sued. And — this is the interesting bit — the French courts sided with him.

In its decision, the court cited Dumas’ “right to privacy” which superseded the photographer’s property rights, even though Dumas had explicitly sold him those rights. Dumas, Whitman quotes the court as opining, had

forgotten to take care for his dignity, and [publication of the photos sufficed to] remind him that private life must be walled off in the interest of individuals, and often in the interest of good morals as well.

So there we have it: The French legal culture, following its ancient traditions, saw:

  • the honor of a high-status individual as the highest value at stake,
  • the “media” as the primary threat,
  • and commercial transactions in the marketplace as a vulgar aspect of liberty inferior to the dignity of the people involved.

2) Sipple

In 1975, President Gerald Ford came out of the St. Francis Hotel in San Francisco. A crowd had formed, and a woman, for whatever reasons, raised a gun to shoot the president. Oliver Sipple, a US Marine and Vietnam veteran, saw this and tackled the woman, so that the shot missed the president.

So he became a “hero“.

America’s press declared him so, and followed up with its usual fare, digging up every morsel of Sipple’s private life for the public. This was unfortunate, because Sipple was gay and, although he was living out of the closet in San Francisco, his family in the Midwest had no idea. Sipple wanted his homosexuality kept out of the papers and sued.

By now it should be clear how a continental European court would have ruled. But the American court gave priority to freedom of the press and of speech. Sipple eventually committed suicide.

So (referring back to the previous post) there again we have it: The American legal culture, following its ancient traditions, regarded:

  • liberty, defined as freedom from state tyranny as opposed to public humiliation, as the highest value,
  • an individual’s home as the only locus legitimately walled off from the public, and
  • public spaces and activities (such as San Francisco’s gay scene, or even the venue of an assassination attempt) as fair game.
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Privacy law: US “liberty” vs European “dignity”

These naked Germans are enjoying themselves in the middle of Berlin. I’ve been just as gleefully naked in Munich, Berlin and various other European places. To Germans and other continental Europeans this is a) fun and b) part of freedom. The word for public nudity, in fact, is Freikörperkultur (‘free body culture’), often abbreviated to FKK.

To Americans, of course, this tends to be awkward if not shocking:

“Don’t these Europeans have a sense of privacy?”

Then there is, for example, Monica Lewinsky and that whole thing with the president of the United States. A special prosecutor — nay, all of America — parsed every word of the country’s head of state, demanding to know exactly what these two had been up to in which closet — from “distinguishing characteristics” to stains on dresses and all the rest.

To Americans this was part of freedom — the free press and the right to hold government accountable.

To continental Europeans, by contrast, this was amusing at first, then awkward, then distasteful and finally undignified:

“Don’t these Americans have a sense of privacy?”

The Two Western Cultures of Privacy

So there you have it: two western cultures of privacy, each (being “Western”) deceptively familiar and yet incomprehensible to the other. Here are some questions, which fit perfectly into two of my threads here on The Hannibal Blog: the thread on America and the one on freedom.

  • What is privacy? What is to be kept private from whom, when, where and why?
  • And how does that interrelate with freedom and dignity?

James Q. Whitman

James Q. Whitman, a professor of comparative law at Yale, has written a profound article about exactly this. It is called “The Two Western Cultures of Privacy: Dignity Versus Liberty.” I recommend it. Here is the PDF.

For the rest of this post, I’ll try to describe the Atlantic culture clash and then the possible historical causes as Whitman sees them. In the next post, I’ll talk about two cases that are great examples of the two cultures. But first — and before you jump into the comments with your counterexamples (there are many) — note that Whitman himself admits that this is a matter of nuance:

The issue is not whether there is an absolute difference. Comparative law is the study of relative differences.

I. The clash

The conventional wisdom — with which I mostly but not totally agree — is that continental Europe has much stronger privacy laws than America does. In a long list of areas, Europe circumscribes what information can be circulated about people, whereas America hardly does so at all:

  • consumer data
  • credit reporting
  • workplace privacy
  • “discovery” in civil litigation (ie, rummaging around in the records of your opponents in a lawsuit)
  • the dissemination of nude images on the Internet
  • and so on.

As Whitman says,

I have seen Europeans grow visibly angry, for example, when they learn about routine American practices like credit reporting. How, they ask, can merchants be permitted access to the entire credit history of customers who have never defaulted on their debts? Is it not obvious that this is a violation of privacy and personhood, which must be prohibited by law?

By contrast, privacy is explicitly enshrined in European law (both national and EU law). For example, Article 8 of the European Convention on Human Rights protects “the right to respect for private and family life,” and the European Union’s Charter of Fundamental Rights features articles on “Respect for Private and Family Life” and “Protection of Personal Data.”

But Americans can counter with a different list to prove that it is actually Europe which allows the compromising of privacy:

  • those “private parts”! (= nudity)
  • baby names: Several EU governments restrict what parents can name their children!
  • Official ID cards/registration: In Germany, for instance, you have to register with the local police when you move to a new place.
  • Court-room use of evidence that Americans would consider illegally seized
  • phone tapping, which apparently happens much more often in Europe than in the US

So the question is: What’s going on here? How did these differences come about? As Whitman puts it,

Why is it that French people won’t talk about their salaries, but will take off their bikini tops? Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection, but refuse to carry identity cards? Why is it that Europeans tolerate state meddling in their choice of baby names? Why is it that Americans submit to extensive credit reporting without rebelling?

II. Causes: Liberty versus Dignity

Let’s first try to analyze the two cultures of privacy in terms of what each thinks must be kept private from whom and for what purpose.

a) Europe (= dignity)

European privacy laws aim to protect a person’s dignity. In practice, this means protecting the individual’s control over the use of his

  • image,
  • name,
  • reputation, or
  • information

So dignity is implicitly defined as control over one’s public image. You have a right not to be humiliated or embarrassed in public.

And who is the enemy/threat? Who would typically do the humiliating? Well, the press, or its new-media descendants today. Let’s just call them all the paparazzi.

b) America (= liberty)

American privacy laws, by contrast, aim to protect a person’s liberty. The word liberty is here defined in the traditional American (and quite narrow) sense of freedom from government tyranny. (Freedom can have many, many meanings: see here, here and here. ;))

Who is the enemy/threat in this culture?

Well, certainly not the press, whose freedom of speech is one of the things most in need of protection, even when that means that individuals (Lewinsky, Clinton) are being humiliated in public.

Instead, the enemy/threat is the state.

The locus of maximum protection, moreover, is not the public sphere (as in Europe) but the private sanctum of an individual’s home. The government must, to the greatest extent possible, be kept out of it. The police must (in most cases) not break in and search it. (This is true in Europe, too, of course, but the relative emphasis is stronger in America.)

In this culture, the right to privacy decreases as an individual moves further (physically or metaphorically) from his home. Once you’re in the workplace, in the subway, on the street, at the beach or otherwise in public, you’ve “asked for it.” Clinton, Lewinsky: you’re fair game!

Whitman puts the mutual incomprehension this way:

When Americans seem to continental Europeans to violate norms of privacy, it is because they seem to display an embarrassing lack of concern for public dignity—whether the issue is the public indignity inflicted upon Monica Lewinsky by the media, or the self-inflicted indignity of an American who boasts about his salary.

Conversely, when continental Europeans seem to Americans to violate norms of privacy, it is because they seem to show a supine lack of resistance to invasions of the realm of private sovereignty whose main citadel is the home—whether the issue is wiretapping or baby names.

Examples

Let’s take another look at the example of public nudity:

Europeans assume that you have a right to both nudity and dignity in public. So, for instance, the paparazzi (or neighbors) do not have a right to take a picture of you and then put it on the internet, because you must remain in control of your public image. It’s not even OK for others to stare at you. (I’ve gotten in trouble over that.)

This concept of private public nudity is entirely alien to American law. In fact, it sounds oxymoronic (perhaps even just moronic) to Americans. They assume that once you have left the sanctum of your home and entered a public space, and indeed metaphorically shed the “walls” of your mobile “home” in the form of clothes, you can no longer expect privacy. You have, as it were, asked for it.

Just one illustration: The US Supreme Court’s 1995 decision in Vernonia School District v. Acton.

The question before the court was whether high school athletes could be subjected to mandatory drug testing. Yes, they could, said the court, because — and this is the logic that confounds Europeans to the point of making them guffaw — athletes regularly shower together (naked, we assume), and by voluntarily exposing themselves, these athletes can therefore expect less privacy, which means it is OK to test their piss.

(This might also shed light on the debate we had when I proposed “shaming” people who text and drive by snapping pictures of them and publishing them on the web. It seems that we are “free” to implement my idea in America, but not in Europe, where this might compromise the dignity of the drivers.)

III. History

So where do these fascinating differences come from? The conventional answer is that Europe after the Fascist horror of the 1930s and 40s, and in particular Germany after the Nazis, corrected for the sheer indignity of those crimes against humanity by elevating human dignity to the highest value.

I happen to believe this is largely correct (Whitman does not, and in my opinion this part of his thesis is the weakest). For example, Germany’s constitution, written in 1949, explicitly starts with the phrase

Die Würde des Menschen ist unantastbar (The dignity of each human being is untouchable)

I pointed to this in my post on the different views of healthcare in America and Europe, and alluded to it in my post on the different attitudes toward prisoners. (European law protects the rights of prison inmates “to a degree almost unimaginable for Americans,” as Whitman puts it. The European in me is shocked by the prison conditions in America.)

But Whitman traces the origins of the differences between America and Europe several centuries further back, and this is the most fascinating part of his argument. So here, in brief, are the histories of privacy law in Europe (France and Germany) and America:

1) Europe

In Europe, the concept of dignity “descends” from that of honor and the so-called law of “insult” that accumulated over the centuries around it.

In a nutshell, what we are talking about here are a bunch of toffs dueling, as in the picture above. It was aristocrats and other high-status individuals who protected their honor (ie, their “public image”), both from the prying eyes of the press and from insult by others. Gradually, society lost its taste for cleaning up the gore after duels and encouraged the toffs to meet in court instead.

What Europe’s various revolutions, starting with the French one in 1789, did over time was to elevate more and more low-class individuals to the same “royal treatment.” Eventually, after World War II, all Europeans became entitled to it, just as all adult French and Germans, of whatever status, could now expect to be addressed by other adults as vous or Sie.

France

France and Germany, took subtly different paths to get to the same place: In France, the main body of law was written during the 19th century in response to famous artists and writers doing sexy things of a questionable nature. (I know this comes as a shock.) I’ll highlight one such case, involving the author of The Three Musketeers, in the next post. In most cases, whenever the dignity of a prominent individual was threatened after sexy photos of him or her were published, even when that individual had expressly sold the right to those photos (!), the courts opted to preserve dignity.

Germany

In Germany, also during the 19th century, the individuals whose cases drove the law forward were not so much lascivious artists but brooding philosophers. (Again, I know this comes as a shock.)

Influenced by Hegel, Kant and their ilk, the German lawyers wanted to prove the pre-eminence of free will. They went all the way back to ancient Rome and the law of my hero Scipio to re-interpret the Roman law of “insult” (injuria). From this, they constructed the concept of Persönlichkeit (personality or personhood), which is often used in the same contexts that Americans use liberty but with a twist.

In a nustshell: To be free meant, as Whitman puts it,

to exercise free will, and the defining characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their full richness…  The purpose of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.

(Sounds a lot like Abe Maslow’s self-actualization, don’t you think?)

In any case, both the French and the German legal traditions put much less emphasis on the sordid American obsessions with consumer sovereignty and commercial freedom (credit reporting, for example) and much more emphasis on creativity and the presentation of self, of Persönlichkeit in all its eccentric splendor.

2) America

America, by contrast, embarked on the journey of privacy law with the Bill of Rights. And it focused on limiting state power. The Fourth Amendment specifically establishes the right against unlawful searches and seizures as the main expression of privacy.

Searching and seizing is usually done in one’s home, so right from the start, the concept of privacy resided there.

Of course, there have been American lawyers over the years who have tried to make American law more “European”. The main attempt was “The Right to Privacy” by Samuel Warren and Louis Brandeis in 1890. But these attempts never went far.

Property rights and/or freedom of speech almost always prevail in American courts over appeals to privacy and dignity. Whitman cites, for example, the Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn and Florida Star v. B.J.F. In these cases, the media published the names of rape victims. In both cases the Supreme Court found that the First Amendment protected media outlets against suit. European courts would have been concerned with protecting the rape victims. Ironically, because those victims might once have been aristocratic toffs.

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