August 2017

The Supreme Court and James Q. Whitman’s “The Two Western Cultures of Privacy: Dignity Versus Liberty”

James Q. Whitmore reveals an interesting contrast: whereas American law and rhetoric is strongest when privacy is approached as a protection against state interference, privacy protections in Germany and France are at their peak when the dignity of the individual is at stake. Justice Kennedy, interestingly, emphasizes this more European approach in a number of his Supreme Court decisions.

Civil law’s influence on early United States law

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law.

Going beyond national legal histories

“Lived history,” writes Bender, “is embedded in a plenitude of narratives. … [O]ver time, different themes or concepts, different narratives, will be deemed significant and emphasized” (page 1). The “plenitude of narratives” is formed by the stories historians tell about the past, by people at the time speaking and living their own experiences, by groups (ethnicities, races, classes, nations, cities) sharing common understandings, and is thus never simple nor unitary.