Law & Society Blog

One of the curious ways in which the American intellectual climate differs from that in Europe is the involvement of the legal system in the “great debates.” Every society has to come to terms with social and technological change, a process that results, at least in open societies, in public debates, in which cognitive and normative expectations are adjusted, re-negotiated, abandoned, or affirmed. Some of the more recent great debates have focused on the (real or perceived) risks from nuclear energy, genetic engineering, stem-cell research, exposure to toxins, terrorism, the government’s responses to terrorism, the effects of food additives on health, the legitimacy of torturing prisoners of war, and the definition of and the responsibility to decide over life and death (as in the Schiavo case). In Europe, these and similar great debates have historically been initiated by intellectuals. Intellectuals are catalysts, which is one of the reasons for their public visibility and significance. Once a controversy gains public traction and evolves into a great debate, it is then usually picked up by or transformed into political movements (such as the Green party). Not so in the United States. Here, the great debates are initiated by plaintiffs from all walks of life, and they take place in court.

The fact that the courts are the primary forum for the great debates is an important reason for the omnipresence of law in American society and intellectual life and for the ongoing creation of (by definition controversial) new rights and prohibitions in realms of scientific and moral uncertainty. By invoking the legal process, lawyers, judges, expert witnesses, lay people (a.k.a. jurors), and, of course, the media, engage in a substantive yet stylized and ritualistic debate that procedurally favors dissent over consensus, consistency (nowadays known as staying on message) over the admission of uncertainty (example on point: expert testimony), and that places a high premium on personal credibility and the affirmation of social authority that goes with it. In every lawsuit, there must be two sides, and the adversarial process is designed to highlight that feature (plaintiff or defendant, tertium non datur). Of course, they may be more than two sides to an issue, as vividly illustrated in the Schiavo case. There, the binary question posed to the legal system was: “Feeding tube in or out?” A third alternative to the two-week long process of starving someone to death, euthanasia, hardly entered the realm of the legally pre-structured public discourse. But the limited scope of the discourse in the United States (limited in comparison to similar debates in Europe) also has significant merits; it leads to greater focus, more clearly stated positions, and a characteristically pragmatic bent of the American great debates. Within a short period of time - usually months, not years - courts have to make a decision, irrespective of whether the public debate has come to a conclusion or not. Institutionally, courts - unlike legislatures - are designed to make and are used to making decisions under conditions of factual and normative uncertainty. Given that many of such decisions will necessarily turn out to be unacceptable, it is critical that court decisions remain case-specific, localized, and tied to a particular fact pattern, that is, free from premature generalizations and inappropriately universal claims. In that, the tentative, context-sensitive, one-step-at-a-time, intensely factual nature of the American discourse, which many European observers find pedantic, pedestrian, and intellectually uninspired, may just be an appropriate reflection of a uniquely diverse, increasingly heterogeneous American society, in which normative claims must prove their viability in a bottom-up evolutionary process of acceptance, rejection, qualification, and situation-specific modification. The courts may indeed be uniquely qualified to produce such localized yet binding (and thereby relevant) normative recommendations for broader acceptance or rejection. (The independence of the judiciary, and its lack of direct public responsibility, is the necessary institutional corollary to its experimental mandate at the frontier of the factual and normative debate.)

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