Enforcing civility and respect: three societies.

Author:Whitman, James Q.

It has become common, over the last decade or so, to plead for more "civility" and "respect" in American daily life. Some of this has come from politicians. Mayor Giuliani of New York, in particular, has been pushing the idea that more everyday civility can lower the urban crime rate.(1) Newspapers and T.V. newsmagazines have suggested the same thing.(2) At the same time, civility has become a favorite subject for academics, with books and articles written by philosophers,(3) sociologists,(4) historians,(5) linguists,(6) and lawyers.(7) Two special topics have particularly engaged the attention of law professors: hate speech and sexual harassment. More "civility" and "respect" have been proposed as a solution to the problems of both.(8) All in all, ideas that used to seem a little schoolmarmish in the wake of the 1960s--ideas about the enforcement of decent behavior--have come to seem respectable again, both politically and intellectually.

It is hard not to feel, though, that there is something utopian about much of this literature. America is a place where interpersonal relations have always been a bit rough by comparison with many other parts of the world.(9) Introducing civil behavior into America--especially into places like New York City--means trying to root out what really seem like deep-seated tendencies in American society. Maybe this can be done. But it is not easy to feel confident, especially since most of our literature is weak when it comes to explaining the deep workings of the sociology of civility. What, after all, is really involved in introducing "civility" into a given society? Why do some societies manage to do it, while ours fails?

It is with these questions in mind that I want to try, in this Article, to bring some comparative law to bear on the civility problem. Within our swelling civility literature there has not been much in the way of careful comparative law. To be sure, a kind of pop comparativism has been a minor motif in the literature. In particular, writers concerned with the problems of hate-speech regulation like to mention that other countries find it easier than ours does to regulate "uncivil" hate speech, and they have produced a variety of lists of the countries that do so.(10) Other, more vague, comparative claims have also been made. France in particular, we have been told, with its patterns of courtesy and respect, is a more "mature" or more "civilized" place than the United States.(11)

But it has to be said that these comparative observations have been made in a naive way. Authors generally summarize the cold black letter of foreign "hate-speech" laws without saying much about how those laws are applied in practice. Moreover--and more importantly--they make no effort to explain how or why the regulation of civility appears in some societies and not in others.(12) It is all well and good to remark that foreigners regulate hate speech. Before we cite foreign statutes in any discussion of American law, though, we really need to know more. We need to know how hate-speech regulation, which seems so objectionable in the United States, came to seem acceptable elsewhere. We need to know, more generally, how the very idea that the law can regulate ordinary interpersonal relations could establish itself in some societies, but not in others.

Hence the problem that I tackle in this Article. My focus is on the contrast between two highly "civil" Continental traditions--those of France and Germany--and the notoriously "uncivil" tradition of the United States. Both France and Germany are countries that are cited, admiringly, for their hate-speech regulation. France in particular is often noted for the high development of its norms of politeness. These countries are cultural near-neighbors of the United States whose social and political systems are in many ways not all that different from our own. They offer themselves naturally for an in-depth comparison. How did these countries, which in many ways closely resemble the United States, come to differ from us in matters of "civility"?

The effort to answer that question plunges us into a sea of complex problems in comparative sociology and history. Part of what I want to show is that European hate-speech regulation, in Germany in particular, is less far-reaching than American authors sometimes like to imagine. But my main interest is in tracing larger patterns in civility regulation than hate speech alone. The relative willingness of the Germans and the French to regulate hate speech is only a part of a more wide-ranging tradition of civility regulation in both countries. In neither France nor Germany is it right to view hate-speech regulation in isolation from other patterns of behavior, for in both countries, the regulation of hate speech is only one aspect of a more complex cultural pattern of the maintenance of respectful interpersonal relations. "Respect" matters over the whole landscape of law and society in Germany and France. In Germany, as we shall see, it may even be a criminal offense to call somebody a "jerk" or to give somebody "the finger": Germany has not only hate-speech regulation, but also civility law of a more far-reaching kind. France, for its part, is rich in widely accepted and carefully inculcated civility norms. The great challenge, in the effort to understand the comparative civility of the "civil" civil societies of France and Germany, is to understand how the values of "respect" and "civility" came to have this much more sweeping importance than they have ever attained in American law.

In addressing that challenge, this Article touches on a range of difficult questions in the sociology of law. But it focuses upon one thing in particular--something that will seem quite strange to most Americans: the idea of the protection of personal honor. In both Germany and France, "honor" is a protectable legal interest;(13) and in both of those countries the maintenance of norms of civility is closely linked to the maintenance of a general right to what German scholars sometimes call "a minimum of honor"(14) or "a certain minimum standard of personal respect."(15) Rude behavior is regarded in both countries as an assault on the personal honor of its target, in a way that Americans would find difficult to comprehend. It is the German and French legal cultures of honor that present the mystery that is my principal topic in this Article: How did it come to pass that honor, a concept regarded by most Americans as almost laughable, has survived in the large industrial democracies of Continental Europe?

Explaining that survival, it turns out, is not entirely easy to do. There is, to be sure, a literature on European honor and dignity. In particular, commentators frequently point to the European commitment to generalized personal honor as part of a larger reaction against the horrors of the Fascist period. This is particularly true of accounts of the German hate-speech regime. As Eric Stein, for example, describes it:

In the Federal Republic of Germany ... the Basic Law (Grundgesetz) guarantees freedom of opinion and speech but makes it expressly subject to limitations defined in "the general laws, the provision of law for the protection of youth, and by the right to inviolability of personal honour." The experience with the abuse of freedoms that contributed to the demise of the Weimar Republic and the suppression of these freedoms by the National Socialist regime left a deep imprint upon the Basic Law and subsequent legislation.... [As a consequence of that experience,] free speech claims must be weighed against the values of human dignity and personal honor that are grounded in the Basic Law itself.(16) Reading this passage, and many comparable ones,(17) one might think of the European attachment to dignity and honor as the work of the postwar period. Europeans, one might suppose, try to enforce "respectful" interpersonal relations because Europe went through a hell of human indignity in the 1930s and 1940s that America escaped. Correspondingly, one might suppose that the European law of honor and dignity had to do with great issues of human rights. One might draw the same conclusions from some of the commentaries on European law that present the idea of dignity as a realization of the philosophy of Immanuel Kant and of the ideals of the Christian tradition;(18) European lawyers, one might guess, have been horrified by the Nazi experience and have felt compelled to turn to high moral philosophy.

Yet, as I argue in this Article, no such account of the rise of European dignitary law can be more than partially correct. First of all, the European law of honor is by no means exclusively about great issues of human rights. To the contrary, the European culture of honor and dignity reaches very deep into everyday social life, covering what to us seem astoundingly trivial matters of civility. Germany and France are not just countries with law on politically charged matters like hate speech. They are countries where ideas of honor and respect govern a striking range of human interaction. They are countries with cultures of respect that form the deep sociological context of their law of respect.

Moreover, they are countries whose cultures of respect are palpably much older than 1945, and whose laws of respect rest on some very un-Kantian values. Indeed, as this Article argues, the honor-laden civility environments of both France and Germany must be traced back principally to the aristocratic cultures of the eighteenth, and to some extent the nineteenth, centuries. The honor associated with civil behavior was, in earlier periods, a characteristically aristocratic value; and when people in both countries behave "civilly" today, they do so, in large part, by adopting patterns of behavior that were once characteristically aristocratic patterns. The post-Fascist period is a latecomer in the making of law safeguarding...

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