Introduction

manfred berg and martin h. geyer

The demand and struggle for rights has been the centerpiece of the devel­opment of modern citizenship. In his seminal essay Citizenship and Social Class, first published in 1950, British sociologist T.

Marshall’s periodization of British history was criticized because of its inherent quasi-teleological model of historical development, among other things. However, as a classificatory scheme his trio of citizenship rights has been immensely useful. His key argument that civil, political, and ^[1] social rights open ways of social and political integration, that they can in fact transcend market forces, also helps us to understand why rights have held such fascination for those who do not possess them.

To conceptualize the evolution of society and politics in terms not only of civil but also of social and economic rights, as Marshall did, was a well- established trend after World War II. Military conflict, specifically the confrontation with totalitarian regimes that denied civil and political lib­erties, had heightened the world’s awareness of rights. If revolution and the process of constitution making in the eighteenth and nineteenth cen­turies gave the discourse over civil and political rights a radically new status, the experience of fascism and the efforts to create a new world order helped to establish a new universal language of rights. The found­ing of the United Nations and the formulation of the Universal Decla­ration of Human Rights in 1948, with its somewhat uneasy mingling of civil, political, social, and economic rights,^[3] certainly marked a tremen­dously important step in preparing the way not only for the civil rights revolution of the 1950s and 1960s in the United States but, one may argue, also for much of our modern “rights talk.”^[4]

From a late-twentieth-century perspective, Marshall’s conceptualization of rights may appear somewhat simplistic because it assumed a more-or- less homogeneous nation-state similar to that of Great Britain at the end ofWorld War II; thus, it focused almost exclusively on the impact of rights on the formation of social classes. Historians, sociologists, and political theorists, among others, have long since argued that the quest for rights and citizenship must be placed into a broader context that, in addition to class, must take into account a multiplicity of identities based on race, ethnicity, gender, religion, or sexual orientation, all of which have been used as rationales for the denial of rights throughout history.

In June 1997 the German Historical Institute in Washington, D.C., held a conference that focused on modern debates over rights and citizenship. This book is an outgrowth of that conference. Because the Institute is especially dedicated to promoting comparative work on Germany and the United States, it seemed obvious to concentrate on the experiences of these two countries. As cultures rooted in the Western tradition of rights, they bear enough similarities to make comparison possible but exhibit enough differences to make it fruitful. Issues concerning differences in civil rights, in modes of inclusion, as well as in the denial of rights and thus the different definitions of citizenship so important for cross-cultural comparisons^[7] comprise the basic focus of this book, as do the various forms of popular legal culture, meaning - as Lawrence Friedman pre­sented the concept - people’s ideas, attitudes, and expectations about law and the legal process.^[8]

The title of this book is adapted from a volume commemorating the bicentennial of the Bill of Rights to the U.S. Constitution, which defined the “culture of rights” as “a way of life informed by a set of beliefs and values in which the language of rights plays a prominent role,” often com­plemented by “a rights-related, philosophical jurisprudence.”^[9] Unlike A Culture of Rights, which is primarily concerned with the philosophical foundations and legal interpretations of rights, the focus of this book is on the social and political history of rights, that is, on the different contexts in which different groups tried to secure rights in the twenti­eth century.

The modern language of rights, as historian Thomas L. Haskell has pointed out, transcends the realm of personal and subjective interests and appeals to an “objective moral order” that confers legitimacy on the claims made by individuals or social groups.^{[10] [11] The “objective” quality of “rights language” offers a good explanation of why rights talk has been such an attractive discursive strategy for the excluded and disadvantaged. If such an objective moral order really exists or any other acceptable epistemo­logical justification for rights can be found, then this certainly is a worth­while subject for intellectual historians, philosophers, and legal and political theorists alike to explore. For the purposes of this book, however, the crucial question is not whether rights must be taken seriously as a philosophical concept but whether rights were actually taken seriously by the people we study. A preponderance of historical evidence suggests that the individuals and social groups struggling for rights did indeed believe in their moral and practical relevance, just as did those who tried to bar them from enjoying those rights.}

This is certainly true for American history. As Michael J. Lacey and Knud Haakonssen have aptly put it, “Nothing is more deeply rooted in the American political tradition than the vocabulary of rights.”¹¹ From the formative experiences of the revolutionary period onward, virtually all disadvantaged groups have made their demands for equality, inclusion, and participation in the language of rights. In the course of these struggles the concept of American citizenship took shape. As the late Judith N. Shklar, among others, argued, the most important factors in this process have been slavery and race.

Ironically, racial discrimination and the African-American civil rights movement of the twentieth century have also played a key role in trig­gering what is sometimes called a rights revolution. Over the past five decades or so, the United States has experienced an expansion in the scope and content of constitutional rights that prompted historian Robert H. Wiebe to speak of a “bull market of rights.”^[14] Rights talk is virtually ubiquitous in American political and cultural debates. For example, the “right to life” is held against the “right to choose” in the heated contro­versy over abortion; assisted suicide is justified by a “right to die”; the humane society argues for “animal rights”; and some environmentalists have even claimed rights for nature itself.^{[15] [16] The expansion of rights is often viewed as progress toward greater liberty and justice, whereas critics have complained that the trivialization of the very concept of rights has led to an inflation of all sorts of spurious claims.}

Arguments that the pursuit of rights and collective goals must be brought into equilibrium are fairly traditional, however, and do not ques­tion the concept of rights per se. A more fundamental criticism has been advanced by scholars on the left who have denied the legal and political usefulness of rights for the disadvantaged. Rights, the protagonists of the so-called Critical Legal Studies Movement have argued, fail to provide solutions to real cases, are aloof from the social world, and create illusions about the law as an independent power capable of protecting the weak. Rather than catalyzing political and social change, rights talk often serves the purpose of co-opting radical social movements and thus enhances the legitimacy of the legal and political systems.¹⁹ For example, the rights con­sciousness that grew out of the African-American civil rights movement is said to have been “created by the powerful in search of moral exoner­ation” and to have produced an antidiscrimination ideology that has no bearing on the needs and interests of the victims but may actually rein­force the victimization of women and minorities.²⁰ There is no evidence, however, that such fundamentalist criticisms of rights have had any serious impact on the rights consciousness of the American people or the dif­ferent groups trying to secure rights. The United States arguably remains the most rights-conscious culture in the world.

With respect to different cultures of rights, Germany quite noticeably lacks a body of academic and nonacademic literature dealing with the issue of rights talk.²¹ No doubt, this has something to do with the way the American civil rights movement has transformed the older language of rights and liberties; but it also has something to do with the differ­ences in academic milieus and in the ways in which law and rights are

18 Kymlicka, Multicultural Citizenship, 192. For an influential critique of ethnic diversity and minor­ity rights, see Arthur M. Schlesinger Jr., The Disuniting of America: Reflections on a Multicultural Society (New York, 1992).

19 Compare the overview of the Critical Legal Studies Movement in William W. Fisher III, “The Development of Modern American Legal Theory and the Judicial Interpretation of the Bill of Rights,” in Lacey and Haakonssen, eds., Culture of Rights, 288—95.

20 Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore, 1988), esp. 4-6.

21 Glendon, Rights Talk; in her critique Glendon repeatedly refers to Europe. conceived altogether. Thus, one German observer of the American uni­versity scene recently expressed his bewilderment at the topics addressed by his American colleagues and with the way they write about these topics: On the one hand, the American literature lacks elements of classic “doctrinal scholarship” that play such an important role in German jurisprudence, and, on the other, exhibits a pervasiveness of critical legal studies emphasizing race and gender or neoconservative economic inter­pretations of law. This reflects an altogether “outlandish world.” This observer speaks of a “growing disjunction” between Europe and the United States.^[18] If such arguments are based on concepts of law as a “science,”^[19] this reflects very well the thoroughly different role of law in these two societies. It has been argued that it is the “role law plays in the formation of American myths and ideologies that is so puzzling to for­eigners.”^[20] Certainly there is no way of imagining the rule of law in Europe as a “civil religion,” as it is often described in the United States, where the Constitution has always been able to influence American civil life to a greater degree than comparable documents or traditions have in Europe because in America traditional authoritative institutions of the state and the churches have been comparatively weak.^[21]

However, Germans are no less adamant in claiming their rights both individually and collectively. The fact that Germany has a greater number of courts and judges per capita than the United States might well prove the argument that the law plays an equally strong role in structuring and regulating the everyday life of its citizens. However, the rights talk of groups and individuals tends to dwell on different issues, namely, on social rights, and places a different emphasis on the homogeneity of citizenship. Last but not least, German rights talk has struggled within formalized par­liamentary political contexts much more than it has in the United States. However, as some of the essays presented here demonstrate, recent American debates on rights have had an impact in Germany.^[22]

These differences should not lead us to forget that modern German history can be described as a struggle for rights, much in the way Marshall argued in his grand theology on the modernization of Western societies. The catalog of civil rights (Grundrechte, or basic rights) of the revolution of 1848 carried on the tradition of similar declarations pro­duced in the American and French revolutions, combining it with the older natural law tradition in Germany.^[23] Despite the failure of that German revolution, the notion became firmly entrenched that modern Germany was to be Rechtsstaat, a state ruled by law with a constitution based on the separation of powers, which thus guaranteed the civil rights of its citizens. The characteristic compounding of the words state and law (rights) in the term Rechtsstaat is revealing and indicative of the strong statist tradition in which the aims of the state are also always defined in terms of some form of common good. This is even more evident with regard to the term Sozialstaat; the “social state” proactively guarantees social rights. Although social legislation before 1914 created the founda­tion of this social state, it was the Weimar constitution of 1919 that spec­ified a set of social rights for its citizens: Social rights were to complement the new political rights within the framework of the democratic repub­lic born of the revolution.^{[24] [25] The idea that the constitutional Rechtsstaat was to be based on the principles of the Sozialstaat characterizes an impor­tant aspect of the German Basic Law of 1949 and is one of the funda­mental assumptions in contemporary German constitutional life and politics. After the historic catastrophe of the Nazi Unrechtsstaat, with its denial of political and social rights, its fervid attacks on the “principles of 1789,” the destruction ofJewish and other citizens, and the bloody repres­sion of its political opponents, the founders of the Federal Republic felt it necessary to define more clearly, and to protect, the rights of the}

country s citizens.

Historically, parts of this statist and social law tradition have been the highly contested notions of common good and equity, which not only limit property rights and freedom of contract but make it necessary to ensure the balance between individual and societal interests. This debate can be traced back to the nineteenth century; yet the political and social devastation brought on by two world wars has clearly left its mark.^[26] Even an issue such as abortion is handled by the constitutional court not merely within the context of the rights of mothers and those of the unborn but also within the framework of social provisions for pregnant women.^[27] Although special groups have successfully invoked group rights - the best example is perhaps the special labor law established in the 1920s with its own court system - rights have been demanded throughout history not so much on the basis of differences in race, class, or gender but on the basis of an inclusionary model of citizenship. Even today, groups do not strive to be defined in terms of their status as minorities within society but on the basis of safeguarding equality and the equal rights of all citizens.

The following twelve essays by scholars from Europe and the United States cover a broad array of topics. In one way or another they all relate to Marshall’s trio of civil, political, and social rights but certainly do not offer a comprehensive account of all the rights that could be listed under these headings. Such an undertaking obviously would be much too ambi­tious for a single collection. Rather, the goal of this book is to trace the development of several key components of modern citizenship within two different but related cultures of rights from roughly the mid-nineteenth century to the present. It is divided into three parts.

The first part deals with race, immigration, and rights. Race has arguably been the most pervasive barrier to the attainment of rights and citizenship throughout American history. African Americans and American Indians may have suffered most severely under racism, but Asian Americans, according to Roger Daniels (Chapter 1), have experi­enced more wide-ranging discrimination than any other group. In his survey of the rights that were denied to and attained by Asian Americans, Daniels considers nine specific fields, ranging from naturalization and immigration to the issues of racial segregation and what he calls “a right to redress for past governmental wrongs.” Their dual status as immigrants and nonwhites made Asian Americans particularly vulnerable to both offi­cial and private discrimination. In California, where Asian Americans were more numerous than blacks, the segregation laws were enforced only against the former group. Japanese Americans, as is well known, were incar­cerated during World War II on the mere presumption of disloyalty. Still, no organized Asian-American civil rights movement was ever formed. Although Asian Americans were deemed unable to acculturate, Daniels shows that they skillfully and successfully employed the traditional legal and political strategies also used by other immigrant groups. He demon­strates how disadvantaged groups that seek legal rights and inclusion must adapt to the dominant culture of rights in order to gain acceptance.

The advocates of black voting rights, as Manfred Berg (Chapter 2) argues in his essay on the discursive strategies of the National Association for the Advancement of Colored People (NAACP), had to confront a racist political culture that denied that blacks as a group were fit for “first- class citizenship.” Although it put great hopes in the ballot as a weapon for self-protection and the attainment of civil rights in general, the NAACP also tried to reassure the white majority that African Americans had no collective interests that were incompatible with or adversarial to those of white Americans. This led to far-reaching concessions with regard to the legitimacy of allegedly color-blind voting restrictions, such as lit­eracy tests, yet it also worked toward the integration of black voters into the American political system. In stressing the American creed, the leaders and followers of the NAACP not only revealed their deep roots within the American culture of rights but also made an important contribution to transforming this culture.

For no other minority group has the American culture of rights been more benign than for Jews, as Hasia R. Diner (Chapter 3) argues in her analysis of how Jewish Americans have historically conceived of and artic­ulated their rights. Whereas Jews in virtually all other parts of the world either were subjected to recurring persecution or experienced a pro­tracted process of emancipation, in the United States they enjoyed, as a rule, the same rights as all other white Americans. To be sure, the hege­monic Christian Protestant culture imposed a number of restrictions on Jews, such as Sunday closing laws, but the separation of church and state restrained the authorities from interference with Jewish institutions and guaranteed an unparalleled degree of internal autonomy. Because the public sphere was committed to religious neutrality, Jews developed both a keen interest in the expansion of the state and a strong identification with the American Republic at large. Anti-Semitism, although an unde­niable presence, was not nearly so politically virulent as almost everywhere in Europe. Nevertheless, even in America Jews did not feel completely secure and preferred not to articulate their rights in an aggressive manner that might offend the Christian majority. After World War II, however, the decline of anti-Semitism, the Holocaust, and the founding of Israel spurred an increase in Jewish political activism. Jewish organizations and individuals played a salient role in support of the black civil rights move­ment and also attacked the vestiges of official Christianity.

If the American culture of rights was tailor-made to Jewish life and interests, the complete collapse of the German culture of rights under National Socialism led to the most horrifying consequences for German and European Jewry. In his account of the dismantling of Jewish rights in the 1930s and 1940s, Karl A. Schleunes (Chapter 4) reminds us that Nazi ideology represented the total negation and rejection of the modern concept of rights. The rights of the individual were eo ipso subject to the interests of Volk and race, and “non-Aryans” and Jews in particular had no rights at all. Schleunes’s essay not only explains how the Nazi ideol­ogy was meticulously cast into law after 1933, it also points out that long before their seizure of power the Nazis had publicly displayed their eager­ness to strip the Jews of the rights they enjoyed as German citizens. Any meaningful rights discourse ceased as soon as they were able to carry out their plans. Some legal tangles arose in connection with the so-called mixed marriages prior to the Nuremberg laws of 1935, but the evidence presented by Schleunes clearly shows that the second thoughts of some Nazi bureaucrats and jurists were motivated by purely legalistic consider­ations and not by any residual respect for the rights of Jewish and non- Jewish Germans.

Nation-states are membership associations that distinguish between cit­izens and aliens who are accorded a very different status regarding their rights - most fundamentally, the right to enter and reside within a respec­tive state. In his comparison of the rights of aliens in Germany and America, Christian Joppke (Chapter 5) argues against the notion that the sovereignty of the state to regulate these matters has been replaced by an international human rights regime. All legal restrictions by states in this respect are self-imposed, he contends, and neither German nor American courts have invoked international law to any significant extent. In the United States the legal debates have hovered around the question of which classes of aliens could claim due process and equal protections guaranteed by the U.S. Constitution. Joppke sees an evolution over time from the classical model of immigration, which is based on the assump­tion of virtually unfettered state sovereignty, to a communitarian model that builds on the respect for established social ties and extends con­stitutional rights to aliens. German law and adjudication have been characterized by the dualism of a constitution that protects a wide set of basic rights for noncitizens and an alien law that is predicated on a strict concept of state sovereignty. Ironically, because German citizenship has been difficult to acquire, the rights of legal resident aliens are extraordi­narily well developed. In addition, the recognition by the courts of family unification rights has worked against the official no-immigration policy. Despite opposing public policies toward citizenship and immigration, the rights of aliens have continuously been expanded in both countries, whereas the legitimacy of state sovereignty in dealing with aliens has been undermined.

The second part of this book deals with issues of civil and social rights. Among these, the right to earn a living as the material basis for social standing has been a key concept in American citizenship.^[28] In her essay on the attempts to establish fair employment practices during and after World War II, Eileen Boris (Chapter 6) explores the interplay of class, race, and gender in the construction of social citizenship in America. The universalist discourse of fairness and democracy-inspired hopes for a com­prehensive right to work implied nondiscrimination and full employment guarantees for all “citizen-workers,” including blacks and women. But not only did the short-lived Fair Employment Practices Committee fail to meet such expectations, the demise of the New Deal decisively shifted the terrain of the debate. The right to work became a battle cry for anti­union legislation, and the language of equal opportunity replaced the original vision of social justice.

The debates over social citizenship during World War II are also exam­ined by Martin H. Geyer (Chapter 7), but from a different angle. During the war a debate flourished over extension of the welfare state. Geyer argues that postwar efforts to counter Nazi Germany’s economic and social propaganda with ideas of a social order based on full employment and social benefits played an important role in stimulating domestic debate. Unlike their counterparts in European countries, American reformers framed their reforms, which would indeed have meant a fun­damental recasting of citizenship, in a pervasive language of liberty and rights. The effort to have President Franklin D. Roosevelt promulgate a new “Bill of Rights” illustrates this well. Even though these attempts by social reformers failed both during and after the war - thus permanently weakening the idea of social rights and citizenship as defined by Marshall - American social reformers did indeed influence not only the way in which the very concept of social rights was shaped to complement polit­ical rights but also the establishment of concepts of social rights on the agenda of new international organizations.

The German consensus on economic redistribution is a central topic of Michael L. Hughes’s essay on the quest by the so-called war-damaged (Kriegsbeschddigte) for compensation for lost property and restoration of their former social status (Chapter 8). In fear of being reduced to the status of welfare recipients in a new achievement economy, the war­damaged based their claims not only on individual property rights but also on the duty of the community to restore a moral order and hierar­chy based on individual virtue and social justice.The arguments that prop­erty signified virtue and independence, and that everybody who had lost property through no fault of their own was entitled to compensation from society, met with a surprisingly high rate of approval even from those who had to underwrite such a program. The actual Lastenausgleich (balancing of burdens), however, was a pragmatic solution that struck a balance among individual rights, public obligation to the “deserving victims,” and the necessities of economic reconstruction.

In his broad comparison of the structural and historical factors that have shaped the postwar political cultures in Germany and the United States, Hugh Davis Graham (Chapter 9) points out that both societies have achieved an impressive record of expanding and fulfilling the rights of their citizens. Germany has built on its traditional combination of ethnocultural citizenship and strong emphasis on social integration by expanding the welfare state, whereas America has expanded individual and group rights but remains relatively weak on social rights. An American political scientist, Graham bemoans the political fragmentation and ideo­logical polarization that has been the price of the American rights revo­lution. According to Graham, this revolution has expanded the regulatory capacity of government but has not prevented the gap between rich and poor from widening. He joins the chorus of critics who argue that an overdose of multiculturalism and rights talk since the late 1960s has destroyed the political basis of economic liberalism and social policy in America.^[29] From this perspective, the stability of the German consensus on the welfare state and economic redistribution that has restrained con­flicts over rights may appear to be a mitigating factor in Germany’s dif­ficulties to modernize its concept of citizenship.

The proper role of the state is also an important consideration in Margaret S. Dalton’s essay on the emerging right to information (Chapter 10).With the dramatic changes brought about by the advent of the global information age, new challenges and old questions abound: Is there a right to information? Who has the responsibility to provide and disseminate information? What would be the social, political, economic, and techno­logical implications of a right to information? Both in the United States and in Germany, political and expert discourses stress the necessity to live up to the challenges of the “information society” but at the same time warn against the danger of a two-tier society of “information haves and have nots,” in which disadvantaged minorities would fall hopelessly behind. Although American leadership is somehow taken for granted, Dalton shows that, as of now, no clear-cut answers exist regarding the challenges of securing information equity. In the absence of a broad-based demand for a right to information, this right is still inchoate.Yet, if infor­mation is indeed the key to future economic success and social status, it is plausible to expect that the right to information will be considered a vital social right in Marshall’s terms because information access will be instrumental in living “the life of a civilised being according to the stan­dards prevailing in society.”^[30]

The two essays in Part Three deal with issues of gender, sex, and rights. Ann Taylor Allen’s essay explores the different cultures of rights in the feminist movements in Germany and the United States from the mid­nineteenth century until the 1930s (Chapter 11). She takes issue with the notion that German feminism’s emphasis on gender differences indicated an inherent ideological commitment to conservative values that eventu­ally played into the hands of the Nazis, whereas the American women’s movement consistently showed an unwavering commitment to the “pro­gressive” cause of gender equality. Allen demonstrates that such a dichotomy does not do justice to the complexity of either movement and that the concepts of difference and equality were not mutually exclusive but rather interdependent. Perhaps even more important, she demonstrates that the differences between German and American feminists were not predicated on ideological dispositions but on the different political, insti­tutional, and cultural environments in which they operated.^[31] Ironically, it was the relatively modern character of German society - particularly the state’s involvement in the areas of social welfare and higher educa­tion, and the existence of a strong labor movement - that most seriously restricted the development of a strong, independent women’s movement. Finally, by questioning the alleged ideological affinities between German feminism and Nazism, Allen argues against the still influential concept of a German Sonderweg, in which all aspects of culture, including feminism, are reduced to a “pattern of conservatism, authoritarianism, and racism that culminated in National Socialism.”

Homosexuals, both male and female, are the one minority that Germany and the United States (and all other cultures) have in common. In his comparative analysis of the quest for gay and lesbian rights Michael Dreyer (Chapter 12) points to the different legal frameworks and political cultures that have shaped this history. In Germany, abolition of the infamous Paragraph 175 of the penal code, which proscribed male homo­sexual behavior, provided the overriding common goal of homosexuals from the founding of the German Empire until the law was revised in 1969 (it was repealed only in 1994). Persecution was most brutal under the Nazis, but the postwar Federal Republic retained much of the Nazi antihomosexual legislation. Traditionally, German homosexuals had not relied on civic activism but on scientific and legal discourse to secure equality of rights and to gain respectability. Eventually, the decriminaliza­tion of homosexuality was brought about by physicians and lawyers within the context of the cultural sea change of the 1960s, not by a powerful gay rights movement. In the United States, there was no single national law against homosexuality, so gay men and lesbians had to confront (and still do) various legal and social discrimination on the state level.The orga­nized U.S. gay-rights movement became part of civil rights activism and the broad-based coalition building typical of the American political process. Over the past few decades the two movements have become more similar, not least because of the global challenge posed by the AIDS crisis.

Rights, as the contributions to this book bear out, have been a key component in shaping the political and social histories of modern America and Germany. Yet, even though America has often been con­sidered a harbinger of universal trends and developments, and (West) Germany has generally been very receptive to American influences in the postwar period, the American culture of rights has not simply been trans­planted. Rights may be “[the most] universal feature of politics in the late twentieth century,” but national traditions seem to remain very strong in shaping the particular “set of beliefs and values” that make up a culture of rights.^[32] Whether the American concept of multiculturalism is a viable model for Germany to emulate remains a question that not only the die­hard protagonists of ethnocultural citizenship ask. Germans view the American experience as a valuable precedent, albeit one that offers only selective lessons.^[33] This book, it is hoped, will contribute to deepening the historical dimensions of these debates.