ISSN 1062-7421
Vol. 12 No. 5 (May 2002) pp. 241-242.

DIGNITY AND LIBERTY: CONSTITUTIONAL VISIONS IN GERMANY AND THE UNITED STATES by Edward J. Eberle. Westport, CT: Praeger Press, 2002. 293 pp. Paper $24.95. ISBN 0-275-97491-X.

Reviewed by John E. Finn, Department of Government, Wesleyan University.

Few books are as straightforward as this recent effort by Edward Eberle. "Dignity" and "Liberty" refer, respectively, to what Eberle calls the central "constitutional visions" of the Federal Republic of Germany and the United States. Eberle's use of these terms-actually, it is more of a central analytical construct here-is a fair indication both of the character and the content of this work.

Put simply, Eberle argues that Germany and the United States "provide different paths" toward the resolution of a single, if not universal, constitutional problem: Reconciling the competing demands of individual liberty and the needs of organized society. The bulk of Eberle's work here is to show how this resolution has been affected in Germany and the United States, with particular attention to "the nature of human personality," or "the essential traits or characteristics that constitute us as human beings."

"Dignity and Liberty" is thus obviously not intended as a yet another self-conscious work ABOUT comparative constitutional law, such as the recent and impressive work edited by Riles (2001, see LPBR 12: 205-7, 2002). It is instead a work in comparative constitutionalism, one that spends little, perhaps too little, time worrying about how (or whether) to do the work and instead simply gets going. In some respects, this is an unfortunate choice. One need not agree that the discipline is in a permanent state of crisis to want to see a more detailed explanation about the very nature of comparative inquiry and how it has structured or influenced the project at hand. So, for example, Eberle more or less simply posits that there are certain core dimensions of human personality that he will study, and others that he will forego because of constraints of time and space. What's in: autonomy, self- determination and identity, privacy, abortion, and freedom of expression. What's out: pornography and obscenity, freedom of religion and conscience, family, and equality.

Any author can appreciate Eberle's constraints, but it's not at all obvious why certain of these constitutional norms are more central to the core of human personality and others less so. Nor is it clear, for that matter, that Eberle's decision to include some and not others is based on any kind of rank ordering and not simply convenience. In either event, choosing to examine some, and not others, may well have a significant influence on the findings. The choice made is sufficiently substantial to warrant a more detailed explanation. One might plausibly argue, for example, that differences in constitutional resolutions of individual liberty and the needs of community cannot be understood at all without recognizing the relationship

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between liberty and equality. Similarly: it might be critical to know why certain kinds of rights-claims are formulated as rights of speech and not, say, rights of religious expression. In short, the very content and definition of the central analytical framework need explicit formulation.

Such concerns aside, however, Eberle's examination of what he has chosen to consider is first rate. Eberle's analysis of identity and self-determination in chapter five convincingly argues that the root construct for such rights in the United States has been privacy. In Germany, however, they have been grounded in dignity or personality. The former has yielded a jurisprudence that favors individual freedom "as an individual right," with "no real focus [as in Germany] on the quality of human life and personality" (p. 151). One might object that this distinction between privacy and dignity is too simplistic-that any conception of dignity, for example, is likely to require some measure of respect for privacy. Eberle concludes that dignity is essential to both schemes, but in German jurisprudence, Eberle concludes, we have a "more complete conception of human personhood" (p. 152).

Similarly, the chapter on abortion is especially useful at identifying the "different premises" behind abortion jurisprudence in Germany and the United States. Eberle argues that German law provides some basis for favoring fetal rights, and hence yields a calculus where the Federal Constitutional Court must accommodate both fetal rights and the autonomy rights of women. In the United States, however, the absence of a tradition favoring fetal rights means the calculation must be between fetal "interests" and women's rights, which generates a different set of constitutional priorities. Eberle also argues such differences extend to important differences in rhetoric-"Condemning abortion, as in Germany, imparts a message of wrongness.. [L]egalizing abortion, as in the United States, conveys permissibility" (p. 170).

Most readers are likely at some point to disagree with one or another of Eberle's characterizations of these different jurisprudential traditions, or about the meanings of specific cases and decisions. The value of a work like this, however, rests less in its specific analyses of case law and doctrine and more in its capacity to spark meaningful reflection about the nature and variety of constitutionalism as a preferred way of organizing human society. Toward that end, "Dignity and Liberty" is an important contribution.

REFERENCE:

Riles, Annelise, ed. 2001. RETHINKING THE MASTERS OF COMPARATIVE LAW. Oxford: Hart Publishing Co.

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Copyright 2002 by the author, John E. Finn.