Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective

Abstract

This essay explores two interrelated questions. First, what are the sources of the current legal culture in the United States and Europe, and second, what, anything, can be said about how European legal culture could change in the face of increasing conflict between citizens and the state over the definition and content of social rights? The essay begins by refining the concept of legal culture employed in the analysis. While accepting the conventional accounts offered by scholars like Lawrence M. Friedman, James L. Gibson and Gregory A. Caldeira, it adopts a more expansive definition which employs Erhard Blankenburg’s methodology, which gives equal weight to legal rules and institutions as to legal consciousness, that is, social attitudes towards the law. Next, the essay explores the ways in which the contrasting legal consciousnesses found in the United States and Europe have informed the public/private distinction in the two legal cultures. In particular, the chapter emphasizes the degree to which in the United States elite legal consciousness moved between the two opposing poles of instrumentalism and formalism, while in Europe legal culture has been dominated until quite recently by a dogmatic tradition that views law as independent of politics. The essay investigates the degree to which adversarial legalism is the legal culture of the United States and observes that adversarial legalism has produced more political gains in private rights such as tort and contract than in public rights, such as the right to welfare or healthcare. Conversely, as some such as Mark Osiel has observed, European legal culture has produced a sphere of private right in which law is seen as marginal to political contestation but where social rights have been successfully secured through politics, and not legal intervention. The essay concludes by considering whether, as conflict over social right become more intense in Europe (due to the contraction of the economic basis of the welfare state), European citizens will look to legal tools made available through the European Union to press their claims in law as opposed to politics. It further asks, whether, if this were to occur, that the turn to law would necessarily mean a change in legal culture and an increase in legal adversarialism in Europe.