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Abstract:
Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic - conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of the protection of privacy, cannot be right.

This article explores these conflicts, trying to show that European privacy norms are founded on European ideas of personal honor. Continental privacy, like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the personal honor of ordinary Europeans. American law takes a very different approach, protecting primarily a liberty interest. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since they have little to do with the supposedly universal intuitive needs of personhood. Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.

Abstract:
Perhaps understandably, legal historians have preferred to forget the long history of the hatred of Roman law. It is a topic that has painful associations with the Nazis, who denounced the supposed link between Roman law and the "materialistic world order." It is also a topic that seems particularly out of place in the current world of European legal politics, in which the future of Roman law in the European order seems to depend on demonstrating the cosmopolitan appeal of the Roman texts. Nevertheless, the topic cannot be allowed to die. Roman law has been dogged by anxiety and hatred for many centuries, for reasons that deserve sustained attention in our scholarship, and that are of real public importance. Even the association between Roman law and the "materialistic world order" - an association made not only by the Nazis but also by Marxists, and indeed by observers well back into the Middle Ages - deserves serious discussion. This essay argues that the best way to understand the history of these hatreds is to return to the defenses of Roman law offered by Schulz and Kaser in the 1930s, who focused on the striking omission of mores from the Roman texts. The resulting narrowness of the legal texts made them seem dangerous and immoral for many centuries. Indeed, anxieties about the apparently "immoral" narrowness of the Roman texts dates back to the Middle Republic, and the same sorts of anxieties underlie many denunciations of western law to this day.

Abstract:
The American model of harassment law, focusing on the protection of women and racial minorities, has always been weak in continental Europe, and it has started to get a lot weaker over the last few years. Instead of condemning the discriminatory harassment of particular protected groups in the American way, continental law is increasingly condemning the harassment of employees in general. The most recent example is the French Penal Code, amended as of January, 2002, to criminalize not only sexual harassment, but "moral" harassment more broadly - all forms of harassment that can impair "the rights or the dignity" of any employee. France is moreover only one of many European countries to venture down the same path. At the same time, the long-standing continental tendency to speak of "dignity" rather than of "discrimination" is being reaffirmed and deepened. In this essay, we report on these continental shifts, and assess their significance for our thinking about the dynamic and nature of "harassment" law. In effect, there are now two paradigms for harassment law in the western world: an American anti-discrimination paradigm and a Continental dignity paradigm, and the Continental experience suggests that it may be difficult for these two paradigms to coexist.

Abstract:
Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.

equality, criminal law, comparative law, european law, american law, punishment

Abstract:
Commentators generally regard the contemporary European attachment to "human dignity" as the product of a reaction against fascist movements, and especially against Nazism. Yet the history of centrally important institutions of the European dignitary regime predate 1945. More disturbingly, some of those institutions date in significant measure to the fascist era, and in particular to the Nazi period in Germany. Focusing on issues of workplace dignity, this essay argues that the history of the development of "dignity" in European law should be seen a largely continuous history, one that includes developments during the Nazi period. The roots of many continental protections for dignity lie in the historic protection of personal honor. The Nazis made protection of personal honor a core commitment of their legal ideology. The result is that Nazi law included important forerunners of current European protections for "human dignity" - though of course the Nazis meant to extend those protections only to "Germans" as they defined them.

Abstract:
This paper tackles the problem of the reemergence, in the USA, of sanctions involving ritualized public humiliation of offenders. The paper begins by observing that such sanctions are very widespread in human societies, including both pre-modern societies and modern ones such as that of Maoist China. The paper then concedes that the traditional liberal accounts of what is wrong with such sanctions do not seem to carry much weight. Even the commonly offered sociological argument that shame sanctions cannot work in a modern, urbanized, society is a weaker argument than it seems: in practice, shame sanctions are imposed only on certain, peculiarly vulnerable classes of offenders--in essence, on sex and "morals" offenders, commercial offenders and first offenders. The claims that justified the great eighteenth-century attacks on shame sanctions no longer have much meaning, since they assumed clearly articulated status differences that no longer exist. As for the claims of the Victorian era, which saw the ultimate abolition of shame sanctions: Those Victorian claims grew out of a sensibility of decency in public comportment that we no longer share. We also no longer share the Christian sensibility that contributed to the campaign against shame sanctions: The idea that public shame should be replaced by inward, conscience-governed, guilt, is an idea that has little power in our less-than-fully-Christian society.

Nor do the great traditional political arguments against public shaming resolve the question. We can divide those political arguments into two strains. On the one hand, there is the liberal argument, associated with figures like Mill, which holds that shaming is a style of sanction to be imposed by society rather than by the state; on the other hand, there is the authoritarian argument, present from the eighteenth century into the Nazi period, which condemns public shaming because of its tendency to trigger riots. The paper briefly considers and rejects both arguments. Nevertheless, the paper argues, the political arguments against shame sanctions, and in particular the authoritarian arguments, do point the way toward an answer to the question of what is wrong with shame sanctions. For the fault in shame sanctions, in the last analysis, does necessarily have to do with their impact on the offender at all. Shame sanctions should be seen as a form of officially-sponsored lynch justice; and the evil in shame sanctions should be understood as an evil growing ultimately out of the relationship those sanctions establish between the state and the crowd it stirs up. This does not mean that shame sanctions do not arguably do harm to the offender's dignity: they threaten harm to what the paper calls the offender's "transactional dignity." But the evil in shame sanctions goes beyond any harm to the offender. For such sanctions lend themselves, even if only potentially, to a style of demagogic politics, and encourage an ugly species of mob psychology--especially when those sanctions are imposed on sex offenders and commercial offenders. The evil in American shame sanctions is, in fact, akin to the evil that we sense is present in the shame sanctions of Maoist China: They belong to an ordering based on governance by mob.