Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

By Austin Sarat; Lawrence Douglas et al. | Go to book overview

Adversarial Legalism and the Emergence of a
New European Legality: A Comparative Perspective

ANTHONY SEBOK

LARS TRÄGÅRDH


Introduction

Historically, the role of law and lawyers has been very strong in the United States. In Europe, on the other hand, what one of us has characterized as an “anti-juridical tradition” has prevailed. Indeed, the idea of a strong and independent judiciary has been viewed with suspicion as profoundly undemocratic. Instead, power and legitimacy has been vested in the legislatures. However, in recent years some observers have claimed to be able to identify an increased “juridification of politics” even in Europe. To some extent tied to the emergence of the European Union and the European Court of Justice, this has translated into a muted version of the American-style “rights revolution.” This, in turn, involves a transformation of the meaning of “rights” in Europe. Traditionally rights have been public, social rights—for example, the right of every citizen to daycare, education, healthcare, retirement benefits, and so forth. Today, this understanding of rights is being overwritten by a rather different idea—namely, individual, private rights that are claimable and enforceable in a court of law. In this essay we will consider the roots and dynamics of the different forms of legality, legal culture, and legal consciousness that both enable and constrain both citizens and politicians as they grapple with the challenges facing the European welfare states today. For clarity, we will use a comparative approach, using the United States as “the other.”


Legality, Legal Culture, and Legal Consciousness

According to James L. Gibson and Gregory A. Caldeira, the concept of legal culture “is one of the most general and ubiquitous concepts in the study of law

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