Lasser on the European Court of Justice

I just finished reading Mitchel de S.O.L. Lasser's Judicial Deliberations, which is a comparative analysis of the decisionmaking procedures of the French Cour de Cassation, the United States Supreme Court, and the European Court of Justice. I'll spare you a detailed review, since this is really wonkish, but suffice it to say that Lasser challenges the notion that the highly formal, deductive style of Continental legal decisions is an attempt to mislead the audience into thinking the decision was "inevitable" and not guided by normative factors. In fact, Lasser argues, there is plenty of normative reasoning going on in the background of these decisions, in the form of arguments by the Attorneys General. The end result may look clinical, but the process leading to it involved robust and open debate.

So that's Lasser's main point. I liked the way he described the ECJ's conception of its own role (remember that the European Court of Justice in Luxembourg is the court of last resort for disputes between the EU's 27 member states):

"Beware!", the Court seems so often to be saying, "We are at the very point of the fulcrum,and we can therefore feel the precariousness of the situation. We have been carefully building a delicately balanced structure that does its best to take all of the difficult and often opposing considerations into account. But if you push slightly too hard, if you resist slightly too much, in fact, if you ask a few too many questions and force us to be slightly too explicit in our responses, you will bring the entire house down!" (p. 360)

Light Blogging for a While

Ernst-- La Cour du Dragon

As you might have noticed, the blogging's been rather light and impersonal lately. The reason's pretty simple: I am under contract to write a book, and have to deliver a manuscript by this summer.

Having never written a book before, I've decided to err on the side of caution and try to reduce distractions to the greatest extent possible. Much as I like this blog, it still unfortunately sorts into the 'distraction' category.

I will try to post now and then as time permits, but I hope you'll forgive me if the posts get a bit more sporadic. After the manuscript is submitted, I'll try to get back to more regular blogging. Maybe in the meantime I'll set up "thread" posts like Atrios, so the readers can take over in comments and start amusing slagging-matches of their own.  

Oh, and the book will be a comparative analysis of the abolition of capital punishment in Germany, France, the UK, and the United States. More details later as the project takes shape. Once the book comes out, there won't be a chance you'll miss it, since this blog will turn into a 24/7 marketing machine for it. 

In the meantime, thanks for your patience and understanding.

[Illustration: La Cour du Dragon by Max Ernst, which has nothing to do with the subject of this post, but which I saw a few weeks ago in Die Zeit and liked]

The Rejoinder from Germany

The question on the table: "Is Germany underestimating the extent of the calamity about to befall it and making a terrible mistake by not passing a large stimulus package?" or contrariwise: "Are German politicians correct in thinking that they will be spared the worst because of the fundamental structural characteristics of their economy (and are the calls for more stimulus from the U.S. driven by the feeling that export-king Germans are "free riding" on other nations' stimuli)?"

The New York Times gives some Europeans a chance to make their case here, and it seems pretty convincing to this non-economist: 

Indeed, to travel between the United States and Germany is to find two countries experiencing the economic slowdown completely differently. The severity of the downturn does not appear to have sunk in yet in for Germans. There was no real estate bubble here, and few people have a substantial portion of their savings or retirement accounts invested in the stock market. The unemployment rate has risen more than a percentage point, to 8.5 percent in February from 7.1 percent last November. But, significantly, the latest figure is still lower than it was just a year ago.

“In contrast to America, our social systems are not on the decline right now,” Mrs. Merkel said Sunday night in a widely watched interview on a television talk show. “Pensions are not cut, unemployment insurance is not reduced. On the contrary, we can register stable and, in some sectors, also rising expenditures, and this makes me hope that our social market economy will enable us to cope with this complicated situation.”

Getting Prisons “Just Right”

Most European criticism of America's human-rights record focuses on the death penalty. However, the widespread use of solitary confinement in so-called "supermax" (super-maximum security) prisons is another issue. Atul Gawande has an article about it in the New Yorker:

Prolonged isolation was used sparingly, if at all, by most American prisons for almost a century. Our first supermax—our first institution specifically designed for mass solitary confinement—was not established until 1983, in Marion, Illinois. In 1995, a federal court reviewing California’s first supermax admitted that the conditions “hover on the edge of what is humanly tolerable for those with normal resilience.” But it did not rule them to be unconstitutionally cruel or unusual, except in cases of mental illness.  The prison’s supermax conditions, the court stated, did not pose “a sufficiently high risk to all inmates of incurring a serious mental illness.” In other words, there could be no legal objection to its routine use, given that the isolation didn’t make everyone crazy. The ruling seemed to fit the public mood. By the end of the nineteen-nineties, some sixty supermax institutions had opened across the country. And new solitary-confinement units were established within nearly all of our ordinary maximum-security prisons.

The number of prisoners in these facilities has since risen to extraordinary levels. America now holds at least twenty-five thousand inmates in isolation in supermax prisons. An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures. By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well. Mississippi alone held eighteen hundred prisoners in supermax—twelve per cent of its prisoners over all.

As it happens, only a subset of prisoners currently locked away for long periods of isolation would be considered truly dangerous. Many are escapees or suspected gang members; many others are in solitary for nonviolent breaches of prison rules.

Gawande notes the devastating psychological effects of prologned solitary confinement, especially on prisoners with intellectual limitations. It's worth noting that the European Court of Human Rights has held that solitary confinement is, itself, not a human-rights violation. The court has, however, suggested that prolonged periods of solidarity would amount to torture outlawed under international human-rights conventions. As Gawande notes, solitary is used in many U.S. prisons for extremely long stretches, almost as a routine state of confinement for many prisoners (especially those with gang ties). 

Europe's problem, by contrast, is overcrowding. Many German prisons are overcrowded (g), and German courts are constantly being asked to determine precisely how few square meters per prisoner amount amount to violations of human dignity. You could say that each country's prison problems reflect its geographical and financial conditions: The U.S. has lots of space and (until recently) lots of political will to build prisons. This results in plenty of room for individual isolation cells, which get used because they exist (if you're only tool is a hammer, everything looks like a nail). In Germany, by contrast, space is at a premium, and  there's precious little money or political will to build massive new prison complexes. So the problem there, in light of rising criminality, is too many people squeezed into too small a space.

James Surowiecki on the Continental Divide

James Surowiecki looks at whether Europe has really earned all the criticism it's been getting for not responding aggressively enough to the meltdown [h/t CJW]: 

[T]he biggest European countries, which have the most influence on policy, have not been crushed by this recession. In countries like Ireland and Spain, where huge housing bubbles burst, the devastation has been immense. But in Germany, where there was no bubble, fewer people are struggling with debt or watching their wealth go up in smoke. To be sure, Germany’s economy, which is heavily dependent on exports, is not in good shape; it looks set to shrink more this year than the U.S. economy. But the unemployment rate in Germany has risen much less than it has here. Indeed, in most of Europe job losses have been less severe, in part because unemployment was already quite high. The U.S. unemployment rate has risen nearly three percentage points since January, 2008. Europe’s is up barely one per cent.

In addition, since most European countries have an elaborate social safety net, a recession has a less dramatic impact on people’s daily lives. In the U.S., unemployment insurance pays relatively little and runs out relatively quickly, so losing a job usually means a precipitous decline in income. In European countries, unemployment benefits are typically substantial and long-lasting. This is not entirely a plus—it probably makes unemployment higher than it otherwise would be—but in hard times it keeps money in people’s pockets. (And paying for it means that European government spending automatically rises quite a bit during recessions.) Furthermore, universal health care enables Europeans to see a doctor even if they’re out of work

So Europeans can avoid getting too deeply into debt and still reap some of the benefits of our borrowing. This is unfair: in effect, Europe is refusing to carry its share of the global economic burden and is piggybacking on us. But it’s hard to see how things could have turned out otherwise. The U.S. economy, much more than Europe’s, is like the proverbial shark: if it doesn’t keep moving forward, it dies (or at least creates a lot of misery). In some sense, we need economic growth more than Europe does. It’s not surprising that we’re going to be the ones who end up paying for it.

Moses und Aron in Duesseldorf


Schoenberg began composing Moses und Aron in the 1920s, and finished the first two of a projected three acts by 1933. He then hit a block, and never finished the third act. Nevertheless, he thought enough of the unfinished project to permit its performance. Since then, it's enjoyed a somewhat uncertain place in the repertory, respected more than it's loved. Moses und Aron is composed in the serial technique Schoenberg pioneered in the early 20th century. That is, Schoenberg selected a "tone-row" of twelve notes — unrelated to each other by conventional harmony — and built the entire harmonic and melodic structure of the opera from various inversions and permutations of that series. The result is, of course, atonal — that's the entire point of serial composing — but Schoenberg spins moments of lyricism, shimmering otherworldliness, and sharp drama from the seminal tone-row.

Schoenberg himself wrote the libretto, which is a very loose adaptation of the episode of the Golden Calf in Exodus. Schoenberg highlights the dynamic between Moses and his brother Aron — Moses is more Hamlet than Charlton Heston. He is a solitary thinker, hesitant and not given to preaching or wonder-working. The Lord reveals himself to Moses and commands him to order the Israelites to worship Him, the single, unknowable, invisible, unimaginable, omnipresent Creator. Moses is frightened and intimidated by this impossible demand — the Israelites want a god they can see and feel, a god whom they can offer sacrifices to and make demands on, a god that lets himself be seen. Moses thus enlists the help of his brother Aron. An expert promoter, Aron beguiles the Israelites with flattery (stressing that God has "chosen" them), and wows them with miracles. The Israelites are temporarily convinced to turn away from their idols, and place their trust in this new, difficult deity. Nevertheless, the conversion is fragile. After Moses ascends Mt. Sinai to commune with the Lord and stays there for 40 days, the Israelites grow impatient, and threaten Aron unless he gives them idols to worship.

Schoenberg greatly embellishes the Biblical armature for the story. Moses and Aron have a symbiotic and uneasy relationship, with Aron usually in the lead role. But that's not the only unorthodox interpretation of the source. For one thing, the chorus of Israelites complain that the new, invisible God — despite his well-known fondness for laws — will himself bring about lawlessness. At least the old, tangible, familiar gods enforced a detailed and enforceable — if bloody — code of conduct. Who will obey a God who refuses to even show himself to his people? Moses himself is more Hamlet than Heston — he spends much of the opera worrying about how to fulfill his divine mission, or communing with the Almighty on Mt. Sinai. It's hard not to see Moses as a commentary on Schoenberg's own situation: the Muse (God) commanded Schoenberg to develop a complex, atonal composition technique (monotheism), thus condemning him to a life of unending struggle against the philistines (the recalcitrant Israelites, who want to hear pretty music).

The choir of the Deutsche Oper am Rhein started practicing for Moses und Aron a year and a half ago, according to a report I heard. No wonder: the choir is onstage for almost the entire opera, and has a fiendishly difficult singing part. But it's not just the singing: in Christof Nel's staging, the fickle Nation of Israel must transform itself, within minutes, from vengeful mob to chaotic orgiasts to stumbling zombies. This they did, convincingly. The set design, by Roland Aeschlimann, is muted and sober: the stage is dominated by a large, curving staircase, and the choir dress in everyday, slightly outdated clothes. The staging team wisely refrained from self-indulgent auteur-theatre gimmicks — in a score which calls for orgies and blood sacrifices onstage, understatement is the order of the day. Nevertheless, the Israelites' unhinged veneration of the Golden Calf — which includes murders and blood sacrifice — builds to a very disconcerting frenzy, as celebrants begin beating each other senseless on the stairs while the orchestra's percussion section fires away.

All in all, a courageous programming decision leading to a fine performance of a difficult but fascinating work. If you're interested, there are still plenty of performances left (g)!

Moses und Aron in Duesseldorf, Anyone?

Schoenberg's unfinished and notoriously difficult opera Moses und Aron is playing (g) this Sunday at 19:30 the Deutsche Oper am Rhein in Duesseldorf. It's quite an event — the opera's so difficult to stage that it's only performed once every couple of decades.

I'm thinking of going, but for some reason, the prospect of going to see a long, largely atonal opera hasn't sparked much interest among my friends. I might just go alone, but I always feel like a loser going to public events alone, even though it's pretty common in Germany. If there happens to be anyone else in or near Duesseldorf in the same boat (want to see the opera, can't find anyone else who does), then shoot me an email, and let's go together!

Unemployment, Warp Factor Four

From a New York Times article about Star Trek fans who build replicas of Captain James Kirk's command chair in their own homes:

“The closet command-chair Trekkies have come out of the closet,” said Keith Marshall, 45, an unemployed phlebotomist, emergency medical technician, corrections officer and firefighter whose uncompleted chair, currently sitting in his brother’s garage, is slated for his own living room in Bonney Lake, Wash. “For a lot of people in the last few years,” Mr. Marshall added, “the pieces have come together.”

I don't mean to make fun of unemployment, a state that many of my friends are suddenly finding themselves being rudely shoved into, but Keith Marshall seems to have covered the entire visible spectrum of joblessness, doesn't he?

Ever Drifting, Drifting, Drifting

Pure loveliness, found at a train station in Duesseldorf. You can almost hear the waves caressing the tendrils of seaweed this way and that:

Seaweed-Shaped Graffito

Note the balding egghead to the right of the graffito with the question mark over his head. You see him everywhere — does anyone know his story? 

There seems to be a lot of outstanding graffiti street art in Germany. Has anyone written a book about it that one of my good-looking, cultivated readers can recommend?

A Buddhist Looks at Angry Greens

I was recently reading Charles Taylor's 1996 lecture "A Catholic Modernity?" when I came across an amusing passage which I'll shortly excerpt. Taylor is a Canadian philosopher whose work focuses on the emergence of the modern identity and the changing place of religion in society. His 1989 book Sources of the Self: The Making of the Modern Identity, is a massive edifice of learning that traces the emergence of the modern idea of the self – how humans came to conceive of themselves independently of their role in society, with an interior space for reflection and a capacity to overcome our instinctual drives. I haven't read his latest tome (he writes big books), "A Secular Age," but it's sitting there on my bookshelf.

Taylor is also a practicing Roman Catholic. His religious commitment generally doesn't come out in his philosophical works (except in that he generally parts company with the anti-humanists). When he was invited to give the "Marianist Lecture" at Dayton University in 1996, though, he spoke from a more personal perspective. The lecture was reprinted in a short book with comments from several other thinkers, some Catholic, some not.

Taylor argues that, ironically, secular critiques of religious institutions were essential to the advancement of religious ideas beyond the confines of the church. Even in highly secular Western societies, for instance, people are expected to care about and donate money to people they doesn't even know, in far-away countries — and regularly do so. In essence, the Enlightenment critique "broke the shell" of Christianity, permitting values originally identified with Christianity to seep out and inform the elements of the humanitarian, "civilized" secular world-view, such an aspiration toward universal respect for human rights, concern for the fate of people in less-developed nations, etc. (This seems to be to be similar to what Juergen Habermas has been saying recently). At the same time, the breakdown of the Catholic Church's ethical monopoly and the emergence of an independent secular world-view capable of developing ethical positions independent of religious dictates provided competition for Christianity, forcing it gradually to curb some of its abuses and abandon its theocratic pretensions. 

Of course, I'm not doing the essay justice. But this passage, in particular, struck me:

A Buddhist friend of mine from Thailand briefly visited the German Greens. He confessed to utter bewilderment. He thought he understood the goals of the party: peace between human beings and a stance of respect and friendship by humans toward nature. What astonished him was all the anger, the tone of denunciation and hatred toward the established parties. These people didn't seem to see that the first step toward their goal would have to involve stilling the anger and aggression in themselves. He couldn't understand what they were up to.

I've added this quotation to a storehouse of encounters between non-Germans (often English or American intellectuals) and their German counterparts, in which the  foreigner remarks on the what seems to be the superfluous bitterness of intellectual discourse in Germany. English speakers respect Heine's poetic achievements but are left bewildered by his cruel attacks on less-talented colleagues. Auden famously couldn't stand Brecht ("a most unpleasant man"). Fritz Stern, after surveying academic discourse in 19th-century Germany, expressed his relief at being able to return to the comparatively bland but much less overheated atmosphere of American academic discourse. Although most of the targets of Karl Kraus' polemical gifts were certainly deserving, the constant tone of sputtering hatred eventually tends to wear most non-German readers out. The examples could go on…

I also often feel a bit puzzled by the sheer bitterness of many ideological debates in the German-language public sphere. Three characteristics stand out in particular:

  1. Overkill — the use of more point-scoring sarcasm and vicious rhetoric than necessary to make the author's argument.
  2. The utter lack of concern to find common ground with the opposing side. This may be due to the fact, noted by that long-time observer of European intellectuals, Tony Judt, that Continental thinkers frequently pontificate on subjectes they don't understand, such as monetary policy or genetic research. It's easier to have a measured, enlightening argument when both sides understand the basic tenets of the field they're addressing.
  3. A certain creeping anti-pluralism: "Not only am I right, but the people who disagree with me are fools, and the world would be a better place if everyone agreed with me."

Note that I'm not saying that every public debate in Germany is conducted this way — people who have genuine power (trade union bosses, politicians, public figures, and the like) are usually quite reasonable, and reach compromises all the time. No, this tendency seems most pronounced among intellectuals. Of course, intellectuals are famously acerbic in every culture, but it seems to me that they're just a little bit more so in Germany (and perhaps in continental Europe as a whole). Am I on to something here?