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The Shared Transatlantic Jurisprudence of Dignity

German Law Journal, Vol. 4, No. 9, p. 925, 2003

Washington & Lee Legal Studies Paper No. 2012-4

12 Pages Posted: 4 Feb 2012  

Russell Miller

Washington and Lee University - School of Law

Date Written: 2003


Critiques of Robert Kagan's recent, inflammatory work on the nature and state of transatlanticisim seem to come in three forms: material, analytical and emotional. By "material" I mean critiques of the fundamental and more or less obvious facts and structures out of which he has spun his claims. These facts amount to little more than the less than revelatory reminder that the U.S. devotes considerably more resources to security and defense spending than do Europeans. Critiques of Kagan's work at this level are pointless. At least on this much, Kagan has it right: we are now all too familiar with the staggering statistic that reveals that American security and defense spending is equal to the total of the expenditures of the next twenty countries.

There are, in any event, more important targets of critique, including bountiful opportunities to call his analysis and reasoning into question, what I call the "analytical" critique. Even here, it is necessary to concede that, at the most superficial level, Kagan's reasoning stands up. A nation's foreign and security policy naturally follows the budget allocations and in this sense it is entirely reasonable to expect a more martial foreign and security policy from the U.S. than from the Europeans.

However, beyond this most superficial analysis, Kagan fails completely and fatally by refusing to acknowledge context of any kind. Kagan's conclusions are unencumbered by any examination of the historical development of the facts upon which he relies. Kagan need not be bothered with a thoughtful consideration of the concepts with which he works. What, after all, does he mean when he speaks of "Europe" or "America"? Kagan need not define "power" before he identifies it as "the all-important question." Most suspect from among all of Kagan's superficialities is his failure to acknowledge the determinative character of the self-selected comparative context in which he works. The dissimilarities between the U.S. and Europe that dominate Kagan's essay would look entirely different in a comparison of Latin America and the West (including the U.S. and European countries) or Africa and the West.

Lastly, emotional critiques really amount to a reaction against Kagan's often arrogant tone. It starts with the essay's first sentence and the tone must be a big part of the essay's popular appeal. On this point criticism should concede nothing. Kagan's tone of superiority has not only proven foolhardy in light of America's troubled post-war occupation of Iraq, but it is also destructive of the chances to engage in a dialogue that might lead to changes in the landscape he describes. I must, however, warn that such tones of superiority are always unproductive, also when struck by Europeans in their characterization of the U.S. As any American who has traveled in Europe knows all too well, the caricature of unsophisticated and simplistic Americans is often delivered with similar tones of superiority that are equally destructive of the chances of dialogue.

I would like to return to the second of these categories and level a challenge to the superficiality of Kagan's reasoning by illuminating what I would like to call a "shared transatlantic jurisprudence of dignity." My claim is that, while on Kagan's superficial level of reasoning the diametrically opposed approaches of the U.S. and Europe to something as socially determinative as foreign and security policy or the death penalty prove up his claim that "the United States and Europe are fundamentally different today," an only slightly less superficial analysis suggests the very opposite. It is a move below the surface of his work that Kagan actually invites, especially with respect to the death penalty. He notes in the early paragraphs of the essay that: "European intellectuals are nearly unanimous in the conviction that Americans and Europeans no longer share a common 'strategic culture'. The European caricature at its most extreme depicts an America dominated by a "culture of death," its warlike temperament the natural product of a violent society where every man has a gun and the death penalty reigns."

And, while Kagan goes about capitalizing on this caricature as the basis for his dichotomous conclusions about Americans and Europeans, he nonetheless insists in the essay's closing paragraphs that: "[a]fter all, it is more than cliche that the United States and Europe share a set of common Western beliefs. Their aspirations for humanity are much the same, even if their vast disparity of power has now put them in very different places."

So which is it? Are we plagued by fundamental differences exemplified by policies like unilateralism and the death penalty, or are we really built of the same stuff even if we often come to radically different conclusions on many things. Kagan maliciously fails to even consider the later until the essay's final paragraph. The following is one possibility for what he might have written with regard to these shared "beliefs" and "aspirations," even in the context of the very different places Europe and the U.S. find themselves with regard to the death penalty.

Keywords: Death Penalty, Transnational Law, Jurisprudence

JEL Classification: K10, K33

Suggested Citation

Miller, Russell, The Shared Transatlantic Jurisprudence of Dignity (2003). German Law Journal, Vol. 4, No. 9, p. 925, 2003; Washington & Lee Legal Studies Paper No. 2012-4. Available at SSRN:

Russell Miller (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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