by Helle Porsdam. Cheltenham UK/Northampton MA: Edward Elgar, 2009. 240pp. Hardcover. £59.95/$100.00. ISBN: 9781847209016.
Reviewed by Rory O’Connell, Senior Lecturer, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk.
This book is written by Helle Porsdam, Professor of American Studies at the University of Copenhagen. Her concern is to examine discourses on human rights, the centrality of such discourses to the development of a European identity or culture, and in particular the different approaches to human rights as between the US (or Americans) and Europe.
She writes from a ‘law and humanities’ approach, and the work aims to be interdisciplinary. One of the major motivations for this work is the concern that Americans and Europeans seem to have surprisingly negative stereotypical views about each other. She recounts how Americans such as former Secretary of Defence Donald Rumsfeld and neo-consrvative intellectual Robert Kagan have been dismissive of European views, in particular the views of ‘Old Europe’ (p.55), but she is equally concerned that European postgraduate students in her experience seem to focus on the failures of the US to participate in multilateral treaties, but do not acknowledge the proud US tradition of rights and the rule of law (p.2). Porsdam helpfully wants to go beyond these observations which are at best trite and at worst stereotypes. There are genuine differences in approach and she wants to obtain a deeper understanding of these; at the same time she wants to emphasise that there is also a common heritage, indeed, that America and Europe have been influencing each other for a long time (p.135).
In exploring these themes, Porsdam covers considerable ground: the idea of ‘culture’ and specifically ‘European culture’, how Europeans and Americans view each other, human rights law, attitudes to international law, copyright law, the idea of ‘law and humanities’ and the films of Lars von Trier.
The book covers these different themes in nine chapters. Chapter one “A soul for Europe?” considers what might be the soul of Europe, or how Europe might realise its emotional, as opposed to political or economic potential (p.10). Porsdam believes that this question of European identity is pressing, given setbacks for the development of political Europe with the French, Danish and Irish voting against European treaties, the prospect of European expansion, and the effects of immigration (p.13). Attempts to put human rights at the center of European culture need to address the European history of colonialism, imperialism, fascism, (p.23) and indeed genocide. In this context, any discourse on human rights in Europe must be ‘self-reflective’ and some advocates of a European ideal expressly start from a ‘self-critical reflection on [*330] the crimes of European history’ (p.17). Chapter Two “The problem(s) with European culture” further problematises the theme, as both “Europe” and “culture” are controversial as to their meaning. Further, in discussions of European culture or identity, the subtext is often the relationship with the America (p.37); for many the deep truth is that Europeans think about Europe as an “Un-America” (p.39). This makes for a delicious irony: if Europeans try to find their culture and identity in some notion of ‘rights’ then they are relying on a discourse long associated (at least since De Tocqueville) with America. Chapter Three “Transatlantic dialogues, past and present” discuss how Europeans and Americans have perceived each other since the 17th Century. In this chapter, Porsdam discusses findings of recent opinions polls and also the development of regular US-EU summits. There is another irony; despite the perceived differences between Americans and Europeans, opinion polls in both regions show the public favour cooperation between the two (p.61).
Chapters Four, Five and Six look in more detail at human rights and international law. Chapter Four presents the system of “Institutionalized European human rights”, though its real concern is to present the two European legal systems, the European Union with its European Court of Justice (based in Luxembourg) and the Council of Europe’s European Court of Human Rights (based in Strasbourg). These courts, though they play as important and at times as activist a role in the European Union and the Council of Europe as does the Supreme Court in the US, do not have anywhere near the same level of public scrutiny and interest as does the US high court. Chapter Four ends with a discussion of the relationship between human rights and politics. If human rights are to be the basis for a European culture or identity, but human rights themselves are not above politics, then (discussing Koskenniemi) there remains a difficult question of “how to move toward a common European identity once the belief in absolute and universal human rights has been lost” (p.89). Chapter Five “Divergent transatlantic views on human rights: economic, social and cultural rights” explores a key different between at least some American and some European views on rights. The difference examined is whether civil and political rights or social and economic rights should be treated as the core of the idea of human rights. Europeans are more receptive to the idea of social and economic rights (though they are largely left out of the European Convention on Human Rights, as Porsdam acknowledges, p.96). This difference reflects (here Porsdam relies on Ignatieff) a US commitment to individualism and a suspicion of government, which is very different from European traditions of socialism, social democracy and Christian democracy (p.111). Chapter Six explores “Divergent transatlantic views on human rights: the role of international law”. Porsdam explains how Europeans have “accused the US of being both inconsistent and hypocritical” (p.130), and gives useful examples of the reservations, understandings and declarations which the US attaches to international treaties such as the International Covenant on Civil and Political Rights (p.126). Yet again, Porsdam helpfully explains some of the concerns of American in this regard, in [*331] particular the distrust of centralised power and the “democratic deficit” in international law making (p.130).
Chapters Seven, Eight and Nine turn back to cultural issues. Chapter Seven “Transatlantic dialogues on copyright” compares the Anglo-American approach to copyright as a property right with the civil law tradition of droit de l’auteur. She highlights the role of human rights in this regard which provides a basis both for the public’s right to knowledge and the author’s rights (p.148). She concludes this chapter noting concerns that modern regulation of copyright law works to the benefit of the entertainment industry rather than the creators of art or the general public (p.163). This leads to a cultural homogenisation where American blockbusters dominate (p.164). Chapter Eight “Transatlantic Dialogues on ‘Law and Literature’” gives an interesting history of the Law and Literature movement before finishing with pleas to broaden this movement: a plea for scholars to delve more into the literature in civil law countries, and for the discipline to be broadened beyond literature to the humanities (p.173). The final chapter discusses the films of Lars von Trier, a director who has apparently never visited the United States, but who has set several films there. The director can claim to be familiar with America nevertheless thanks to the influence of American culture overseas. Porsdam focuses on Von Trier’s recent work, which includes for instance one film that is a metaphor for the US invasion of Iraq.
Porsdam covers a great many topics in this book. She rightly acknowledges in the introduction that interdisciplinary work is difficult to do (p.9). She explains the process she used to avoid making mistakes (which unfortunately did not catch one mistaken reference to the European Court of Justice on page 204). Her desire to cover all these different topics also poses a challenge in ensuring that all the chapters link together logically. While the first few chapters do so, the last three chapters read more like contributions to the overall theme of the book rather than the careful development of an argument.
These minor quibbles apart, there is a lot to take away from the book. The need for Europeans and Americans to avoid presenting each other’s views in the form of stereotypes and to try and understand each other’s positions and the reasons for them is important. The stress on the common heritage and the frequent interchanges between the two traditions is also a valid point. The pleas that ‘law and literature’ should look at other forms of art, and even more so that the movement should consider the literature in civil law traditions, are welcome. The book also highlights that much more can be done in Europe to raise awareness about the role of law in society, which is important if law and human rights law assume greater significance in European politics and culture. It is perhaps a shame that while many Americans can name BROWN v BOARD OF EDUCATION, most Europeans would be hard pressed to name the subject matter of DH v CZECH REPUBLIC.
Perhaps most welcome of all (and here the reviewer writes as a European human rights lawyer), is the reminder that European human rights advocates need to be self-critical. If Europeans wish to [*332] criticise Guantanamo Bay and the US death penalty then they also need to pay attention to the complicity of European countries in practices like “extraordinary rendition”, the reluctance of European countries to accept Guantanamo detainees, and the decision of the European Court of Human Rights that human rights principles did not apply to NATO warplanes bombing Belgrade.
BROWN v BOARD OF EDUCATION 347 US 483 (1954).
DH v CZECH REPUBLIC (App no 57325/00) (2008) 47 EHRR 3 European Court of Human Rights Grand Chamber.
© Copyright 2010 by the author, Rory O’Connell.