This text explores the potentialities of comparative law as an exemplary exercise to ’think’ multiplicity: how to resist reductionism when describing the meeting of citizens of different cultures. In par. 4.2 I follow Van Brakel who emphasises the constitutive role played by things (non-humans) as regards intercultural communication. The text pleads the specific, relational conception of law that is referred to in the description of our project. It might elucidate my conception of ’humans as seen by law’ (wp 8). It was presented at the Conference of Epistemology and Methodology of Comparative Law in the Light of European Integration in October 2002.

1 Introduction

In this paper human rights will be considered not simply as conditions for an intercultural society such as the European Union but as preconditions, or, in other words, human rights will be conceptualized as constitutive and not as causal or moral conditions for ’European Integration’.

This means that the level of the analysis is epistemological rather than methodological, though at many points I will indicate the consequences of this approach for the way comparative law can be practiced, if it is to contribute to an intercultural ’area of freedom, security and justice’ (art. 29 of the Treaty of the European Union).

In par. 2 I will reflect on the use of the term European, that refers to much more than a geographical territorium or an economic market. In par. 3 I will question the idea of European Integration, which I will elucidate in par. 4 by a conceptualization of ’the intercultural’ as a shifting fluidium of diversities. In par. 5 I will move to the constitutive meaning of human rights for a European ’rechtsstaat’ and in par. 6 I will conclude this exercise by pointing out the possible contribution of comparative law for the ongoing institutionalization of human rights as preconditions for an intercultural European area of freedom, security and justice.

2 What about Europe?

Starting from the treaties of the European Union one could refer to four phenomena as being ’European’: the internal economic market (art. 2 TEC), a European citizenship (art. 17 TEC), a common European heritage (art. 151 TEC), and an area of freedom, security and justice (art. 29 TEU). The first and fourth of these seem to locate Europe as a geographical entity that is confined within the borders of the Member States of the European Union. This is obviously a restriction that has its practical and political merits but I would prefer to start with a broader conception of Europe.
Europe is in the first place an idea, a concept, that refers in a rather vague way to both a continent with fluctuating borders (are Russia and Turkey part of Europe or should a line be drawn that divides these countries into a European and an Asian part?), and to a culture that encompasses Scandinavian, Slavic, Mediterranean, Anglo-Saxon, Teutonic, Celtic, catholic, protestant, Moslem, socialist, liberal and many other cultural orientations. The kaleidoscopic nature of this ever-changing amalgam of shifting loyalties has of course been transfixed for political purposes into a more dependable self-image. One could locate the birth of Europe in the early Middle Ages when the Frankish kings united a diversity of Germanic clans and tribes under the common banner of the imperium christianum, upon which - in the late Middle Ages - the Popes built their pan-European empire. It is only after the reformation and the advance of royal absolutism in the 17th and 18th centuries that finally the germs of the secular national state emerge. And only in the relatively recent 19th century the idea of the national state broke through, transforming Europe into a battlefield of territorial states that seek to differentiate themselves from each other on the basis of a national identity. As much as the idea of a Christian European empire was a tool for overcoming local or tribal loyalties during the Middle Ages, the idea of the nation was an instrument for centralizing the loyalties of the inhabitants of specific territoria during the emergence of the nation-state. These identities are partly rooted in shared ways of life and partly constructed for political reasons.

I would like to understand the political and juridical constitution of the European Union against the background of this broad conceptualization of Europe as an intercultural society that is built on both our common historical heritages and the attempt to institute a new subject in global economic and political relations.

3 European Integration and comparative law

From this conception of Europe it follows that a European law, apart from instituting a new juridical order with new legal instruments based on the authority of a European legislator and a European government, must consider comparative law as one of its main sources. It is inherent in the attempt to overcome exclusive nationalist identifications, that a common law of Europe is based on a specific form of intercultural communication that leaves room for the diversity that is constitutive of a European identity.
This means that the canonical hierarchy of the sources of the law - a hierarchy that is questioned since it was invented, but did solve many problems in the mean time - must be reshuffled. This may sound either shocking or self-evident, depending on one’s dogmatic position - but let’s not get into that now. The point is that the legal order of the European Union manifests itself almost exclusively as a huge network of instrumentalist legal rules, to be implemented by the Member States that inevitably differ enormously in their interpretation. In the last instance the Court in Luxembourg has to identify a coherent interpretation of these legal norms, but before that the Member States and the Commission will anticipate this coherence (trying in the mean time to read the authoritative texts in a way that serves their own purposes). Without taking comparative law serious the effort to shape a stable European Integration is bound to fail. Precisely at the technical level of the interpretation and implementation of legal rules a durable sensitivity is needed for the plurality of interpretations that can still be considered as interpretations of the same rule. The salient balance that is required between respect for the diversity of shared lifeforms and the need for legal security (’rechtszekerheid’) presumes the possibility of a communication between those differing lifeforms that surpasses taxonomies of written legal rules (comparison by mere juxtaposition).

In the next paragraph I will explore the possibilities of such intercultural communication at an epistemological level, before moving to the relation between human rights and the European ’rechtssstaat’.

4 Conceptualization of the ’intercultural’

4.1 Intermingling ’cultural orientations’

In 1999 the cultural anthropologist Van Binsbergen held his inaugural lecture at Rotterdam University under the subversive heading Cultures do not exist. The examination of interculturality as a way of breaking through the self-evident. He calls for the dismissal of the holistic concept of culture that - in his opinion - originates from an outdated interpretation of cultural anthropology. According to Van Binsbergen this holistic interpretation of culture was connected with the ’ethnographic monograph’ that was used by anthropologists as the standard method of reporting their findings. These monographs suggested that their content formed the description of one homogeneous culture. This type of report was based on a strict separation of an internal perspective (from within the observed tribe) and an external perspective (from the Western scientist). By using the method of ’participative observation’ the anthropologist was thought to have access to the internal perspective of the tribe, which - on epistemological grounds - was thought to be beyond criticism. In the course of time however, it turned out that different fieldworkers could and did reconstruct completely different internal perspectives of the same tribe. The static conception of culture has therefor been abandoned in favor of a reflection on the intercultural communication that is the precondition for any cultural anthropological research.

As argued in the last paragraph intercultural communication is not only a precondition for anthropological research, but also for any multicultural society to survive in the long run. This means that also within the EU the focus should be on intercultural communication and on its constitutive relationship to what is called ’European Integration’. Van Binsbergen distinguishes two ways to think of this so-called intercultural communication:

 either one can postulate a universal attribute in every culture (which would enable us to maintain the traditional conception of culture as being holistic and as having clear borders);
 or one can take the totality and the borders of ’culture’ as relative by starting from the idea that in every human situation there are always many different cultural orientations involved: within one person as he plays his many and often contradictory roles, as well as between different persons in their mutual interactions.

With Van Binsbergen I would choose the second approach: instead of speaking of different cultures as distinctive entities that determine their members’ actions and that are thought to be mutually exclusive, I prefer to speak of intermingling ’cultural orientations’ that are present within each person as well as within each society. In the next paragraph this choice is elaborated on the basis of a text by Van Brakel, who discusses the epistemological aspects of intercultural communication.

4.2 Intermingling pluralities of manifest life-forms

On May 1st 1500 P?ro Vaz de Caminha sent a letter to the Portuguese king Dom Manuel I about the discovery of a new land, nowadays called Brazil. Vaz de Caminha reports on the first contacts between the inhabitants of this new land and his boatmen, that as far as language and culture are concerned were complete strangers to each other. These first contacts evolved via - what Van Brakel would call - a shared Umwelt, that is: via pointing out objects that might have an equivalent significance for people on both sides of the language- and culture-barrier:

"One of them [inhabitants of the new land, mh] saw some beads of a rosary, white beads. He made a gesture that one should hand them over, and he enjoyed himself with them for some time and put them around his neck, and after that he took them of his neck and rolled them around his arm. Then he pointed at the land and again to the beads and to the necklace of the captain, as if to say that they would give gold for it. We understood it that way because we wished to. But if he wanted to say that he would take the beads and the necklace also, than we did not understand what he meant, for we would not give it to him".

In his text Van Brakel attaches paradigmatic significance to the phenomenon of first contacts, because - according to him - they can show us how to avoid the Scylla and Charibdis of universalism and relativism. The salience of the example of first contacts brings in the importance of a shared Umwelt and a more or less non-verbal communication. Pointing at objects that are used by both parties is of crucial importance in this learning-process. Exchange or donation of objects that have a specific meaning within one or both cultures functions as a primary process that induces communication. Van Brakel refers to Davidson’s triangulation-theory, that comes down to the fact that in a language-learning situation both speakers deduce the meaning of words from the reaction of the other to the same object or situation, when this reaction occurs at the same time with one’s own reaction to that object or situation. This means that a shared Umwelt is a precondition for intercultural communication. Of course one can learn another language by exclusively studying dictionaries and grammar-guidelines, but the understanding of the idiom of the other will be extremely restricted because it has in that case been acquired in the terms of one’s own language, which robs the translation of its context.

To Van Brakel ’intercultural understanding’:

"refers to interaction between people of different cultures, without the intention to reify ’culture’ - amongst cultural anthropologists the essentialist conception of culture has long been replaced by the idea of cultures as open, porous, overlapping interaction and as being the result of ’internal’ negotiations. We are talking about what Gadamer calls horizons that are open, porous and changing and what Derrida calls de-essentializing the concept of identity".

This way he resists the way in which multiculturalists use an essentialist concept of culture in order to fight for social and political rights for well-defined minorities. To them the concept of culture is just a means to an end. By describing intercultural understanding as he does, Van Brakel hopes to avoid both a universalism grounded on biological or moral arguments and a relativism grounded on the life-form or language-game of a specific group or culture that is believed to determine people that fall within its borders. Still he dares to call his intercultural communication a ’fundamental’ universality, but:

"This ’fundamental’ universality is not a universality that can be described or conceptualized in one best way, because what constitutes this universality is something that cannot be caught in philosophical or scientific theories. (...) One of my goals is to show there are no criteria for ’objective’ equivalencies, that form the basis for cognitive or affective universals. It is not the case that human knowledge is possible because the world has a specific intelligible structure and people are psychologically structured such that they will detect this structure and make a cognitive representation of it".

Instead of objective equivalencies he suggests:

"What is equivalent, is that, which people recognize as equivalent in first and other contacts - equivalence is grounded empirically, but its content is open and passing. (...) This equivalence must be claimed (demanded, determined) every time again in first contacts, and, strictly speaking, every time again in every interhuman contact".

By capturing this universality in non-essentialist terms, he can avoid the relativist tendency ’to lock every community of life-form in its own image of the world’. For this is also a form of essentialism, concerning not the essence of culture but the essence of each separate culture in itself.

In his last chapter Van Brakel works out the concept of ’manifest life-forms’ in relation to Wittgenstein’s Lebensform, Husserl’s Lebenswelt, Heidegger’s Dasein and Geertz’ common sense. While extending these concepts into his ’manifest life-forms’ he aims to disclose an intercultural dimension, that refers to a pre-lingual, pre-cultural dimension in every person as well as to the multi-lingual, multicultural dimension that becomes manifest in first contacts. We can compare his ’manifest life-forms’ to Van Binsbergen’s conception of the intercultural, which is based on the idea that in every human situation ’different cultural orientations are at work that are continuously accommodated (both within one person as he plays the many roles he integrates and between different persons in their mutual interactions’. This intercultural dimension is - according to Van Brakel - biological as well as cultural, empirical as well as conditional (transcendental), single as well as multiple and local as well as universal. He is not concerned to ’propose a conception that can be further investigated upon by some science or another’ but with ’the everyday or manifest life-forms as manifest worlds of meaningful situations and actions in which people are already embedded and which form the background for all scientific, philosophical, intercultural and other activities’. The core of his plea is that everyday life-forms are inherently pluriform and pluralistic, which is not only apparent when one becomes aware of the historicity of one’s own image of the world, but also and precisely in the confrontation with - radically - different images of the world.

4.3 The ’flou’ of the intercultural and the practice of comparative law

To my mind we can learn a lot from Van Brakel and Van Binsbergen about the practice of comparative law as a source of law at the European level. Sidestepping essentialist universalist pretentions and radical relativism one can look into the different legal regulations of the Member States while considering not only their legal and social context but also by getting in touch with the Umwelt in which they function. This of course presumes research programs that facilitate research methods like participatory observation and a strong interdisciplinary background of the researchers involved. It means a long-term investment into comparative law next to the numerous short-term assignments for superficial ’comparison by mere juxtaposition’. It means that reading about the social context is not the same as getting involved in the actual Umwelt in the above-mentioned sense or, in other words, a hermeneutical approach to comparative law takes a different angle when one incorporates the phenomenological perspective instead of sticking to text-interpretation.

It also means that the ’flou’ of the intercultural that is manifested within each culture can be acknowledged, so that every attempt to fix legal regulations (inevitable if one wants to compare) can be seen for what it is: an act of identification in which equivalence or sameness is posited.

5 The constitutive meaning of human rights for the European ’rechtsstaat’

5.1 Montesquieu and the idea of the ’rechtsstaat’

An interesting question is how these meanderings are related to the topic of human rights. To explain this I will distinguish three versions of human rights. One can view human rights as natural attributes of human beings or, in other words, as part of human nature. This view is of course connected with natural law and with claims for essentialist universalism. Another way to view human rights is to conceptualize them as contingent historical facts that are not part of human nature but one of many possible ways to organize the relationships between individuals and the state. The radical relativism of Richard Rorty comes to mind. The contradictions between universalism and relativism that we have just encountered in our exploration of the intercultural seem to control the entire spectrum of cross-cultural thinking, including the discourse on the ’universality’ and/or ’historicity’ of human rights.

Following the epistemological groundwork of Van Brakel I will plead a non-essentialist third way of conceptualizing human rights - stepping into the footprints of one of the first comparative jurists: the French 18th century founding father of the ’rechtsstaat’ Montesquieu. For Montesquieu did two things: he emphasized the relation between specific types of ’culture’ and specific types of government and he spoke out in favor of a moderate government. So while recognizing the historicity of cultures and the related forms of government he pointed out why and how one way of organizing the public and the private is better than the other. His De l’esprit des lois can be read as a sensitive exploration of the many roads to despotism and as a prudent advice on how to prevent the republic from turning into anarchy and the monarchy into tyranny. His plea for a moderate government was not new and he could and did refer to the mixed government of the Roman Republic but he added one crucial ingredient to his recipe for moderation: the independence of the judiciary. His contribution to the advance of the ’rechtsstaat’ is precisely the juridical nature of his (re)construction of the state: he emphasized the artificial character of such a state. To institutionalize a durable instead of a contingent balance of powers he conceptualizes the law as an autonomous and even anonymous body of legal relationships that constitute the relational order of society. To protect the autonomy of the law the decision about its meaning in concrete cases should be kept out of the hands of the administration. So his historicism goes beyond the contingent. He elucidates the importance of a politically independent judiciary as a precondition for the workings of this legally instituted balance of powers. His keen eye for the machiavellian nature of power-contraptions led Montesquieu to a relational conception of law that provides the skeleton for a moderate government.

5.2 Lefort and the ’instauration’ of the cleavage between power and law

This relational conception of law and the ’rechtsstaat’ has been reconceptualized by Claude Lefort in terms of the relationship between human rights and democracy. He speaks of the D?claration des droits de l’homme of 1789 as a mutation in the symbolic order, instauring a gap or cleavage between power and knowledge and between power and law. To demonstrate the meaning of these gaps Lefort discusses the significance of arts. 10 and 11 of the D?claration about the freedom of religion and the freedom of speech, and of arts. 7, 8 and 9 that articulate the principles of legality (referring to criminal law and criminal procedure) and the presumption of innocence. His discussion starts from Marx’ criticism of the ’bourgeois’ character of these ’human rights’. Lefort acknowledges the fact that these human rights seem to incorporate an atomistic image of human beings that links the liberal foundation of society to the creation of a private space for unbridled capitalist advance. At the same time however Lefort points out the practical consequences of these rights and freedoms. As of their proclamation they stand for the creation of an area of freedom that is fundamentally out of control. The subversive nature of a private and public domain in which opinions can be freely articulated, argued and diffused cannot - according to Lefort - be underestimated and must be recognized as the germ of the full-fledged democracy that broke through at the beginning of the 20th century. In the same light Lefort discusses the right to a ’fair trial’ in criminal matters and all the incriminating and imposing activities of government officials before and after the criminal charge and the conviction. He stresses the position of the written law that constitutes the competencies of government officials and at the same instant limits these competencies. For the written law to perform this double function of constitution and limitation, its meaning must be determined outside the realm of the administration: only an impartial and independent judge or jury should be trusted to determine the meaning of the law in concrete cases. The judiciary and not the king(’s officials) should be the mouth of the law, to quote Montesquieu whose words have often been interpreted in a rather lean way.

When interpreted this way human rights are much more than instruments for the advance of a bourgeois or even consumerish individualism. These rights institutionalize the much acclaimed balance of powers, instaure gaps between the powers of government and the processes by which knowledge is produced and between the power of government and the processes by which the law speaks. When invoked these rights do not only protect the citizen that claims them but at the same time protect the constitution of the democratic state. They form the preconditions for this democratic state, because they create the positions from which opinions can be voiced and participation can be realized. They function not only for their own sake but also and at the same time demonstrate and represent the specific balance of powers that constitute a democratic ’rechtsstaat’.

6 The contribution of comparative law to the institution of an intercultural society

At the same instance these rights and freedoms enable the ’flou’ and the flow of the intercultural as discussed in par. 4, especially when they function at a European, transnational level. Both the Court in Strasbourg and in Luxemburg have to accept the open texture of the rights that are articulated in the Conventions whose meanings they authoritively decide upon. Precisely the transnational background of the Conventions and the multiple ways in which they could be interpreted demand a sensitive research into the national context of the cases brought before the courts. At the same time the verdict must be acceptable for all the member states since they will have to implement the decision within their own jurisdiction. This in fact precludes rigid interpretation-techniques and implies that, especially at a transnational level, human rights can be used as trump cards to ward off the imposition of petrified monocultural codes of interpretation. It may seem that using human rights as trump cards effects only the vertical relationship between state and individual. Their impact, however, goes way beyond this verticality. By disallowing monocultural interpretation they open up a space in which a European citizenship can constitute itself between individuals with a multiplicity of shifting cultural orientations. The idea of a trump card is not only to limit governmental interventions but rather to establish the public spaces in which people can interact without being forced to identify with some dominant or minority code of interpretation (whether from a government, from some monopolist section of corporate bussiness or whichever other powerfull network). If human rights are understood in this way they can form the subversive germ of freedom that facilitates intercultural communication. They can function as preconditions for an intercultural European society that does not thrive on unification but on integration: on accommodation rather than on implementation, on finely attuned interpretations of legal norms rather than on bureaucratic enforcement of mechanically interpreted legal rules. Human rights can thus form a counterbalance against the instrumentalism of the European legal order that threatens to shrivel European integration to the level of unshared technical legal rules, unable to touch on the lifeworlds of its people. This counterbalance presumes the independent position of the European Courts as they determine the meaning of these rights and enable them to function as preconditions of this intercultural dimension of Europe, without which no internal market or area of freedom, security and justice can be successfully sustained.

For the Courts to attain the required level of sensitivity to national context and transnational applicability, comparative law can be of primary importance, if practiced as a discipline that goes beyond ’comparison by mere juxtaposition’. In this light it is interesting to read the inaugural lecture of Fijnaut The European Union: a pleasure garden for (criminal) comparative law and his contribution on ’Comparative law and (the science of) criminal law: some methodological considerations’ for the Dutch Society for Comparative Law. In both he pleads for methodical pluralism and against the dominant monodisciplinary approach, which he attributes not only to lack of good intentions but also to the lack of researchers with an interdisciplinary educational background. Referring to the ambitions of the EU in terms of the third pillar and the creation of an area of freedom, security and justice, he proposes an ambitious, richly embedded interdisciplinary research-program on comparative law that should help localize problematics that can and should be solved on a transnational level. Most interesting are the components that he enumerates for the education and training of comparative lawyers: practical matters like the command of different languages; initiation into the history, principles and purposes of comparative law (in a way that goes beyond formal, dogmatic positions) by reading primary texts and examination of large (inter)national research-programs; training in methodological issues by the study of, participation in and implementation of existing research-programs; study of the different legal systems of the EU (including the different dealings with policy-implementation) and study of the political implications. If these types of researchers start comparing the way human rights function in different Member States and the way these interpretations can and should cohere as interpretations of the same legal norms, the inherently plural character of the European democracy can be protected and advanced in a way that could never be accomplished by comparison by mere juxtaposition.

7 Conclusions

Human rights do not function as preconditions for the intercultural dimension of Europe if they are understood as simple trump cards to protect individual citizens against government interventions. To create room for the fundamentel process of intercultural exchange a more complex concept of human rights must be developed, that correlates these rights with the relational conception of the democratic constitutional state. The balance of powers that is constitutive for this type of democracy presumes an independent judiciary that ultimately determines the meaning of these rights, in a never-ending process of case by case decisions. At this point comparative law can be of crucial importance. If comparative law engenders an intelligent set of tools for what Mireille Delmas-Marty calls penser le multiple, human rights could very well play the role of a constitution that respects and stimulates diversity while instauring time and again a shared space of freedom, security and justice.
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